Reconsideration of N276485; Classification of a Surfing Suit.

January 30, 2017 HQ H279892 CLA-2 OT:RR:CTF:TCM H279892 TSM CATEGORY: Classification TARIFF NO.: 6113.00.90 Ms. Lisel M. Ferguson 525 B Street, Suite 2200San Diego, CA 92101 RE: Reconsideration of N276485; Classification of a Surfing Suit. Dear Ms. Ferguson: This is in response to your August 23, 2016 request for reconsideration of New York Ruling Letter (NY) N276485, dated July 8, 2016. In that ruling, the National Commodity Specialist Division found that a bodysurfing suit imported by your client, Wave Wrecker, LLC, was classified under subheading 6113.00.90, Harmonized Tariff Schedule of the United States (“HTSUS”). You assert that the wetsuit should be classified as sports equipment under heading 9506, HTSUS. We affirm N276485 because we agree that the wetsuit at issue is precluded from classification in Chapter 95, HTSUS, since it is “sports clothing of chapter 61 or 62” within the meaning of Note 1(e) to Chapter 95. In NY N276485, the instant merchandise is described as follows: The submitted sample, “WaveWrecker”, is a man’s wetsuit with fins. The garment is constructed from a three-layer textile lamination having a center layer of expanded neoprene with knit nylon textile fabric on the inner and outer surfaces. The garment is a tightly fitted one-piece, long-sleeved garment that extends from the neck to the mid-thigh and has leg separations. It features a stand-up collar with a rear hook and loop closure and a rear zipper approximately 20 inches in length that extends from the neck to the waist. The attached fins are constructed from plastic foam. First, we note that the U.S. Court of International Trade (CIT) issued a decision classifying two wetsuits in H.I.M./Fathom, Inc. v. United States, 21 C.I.T. 776 (1997). In that case, the Plaintiff similarly argued that the wetsuits were properly classified as sports equipment of heading 9506, HTSUS. Id. at 776. Further, the Plaintiff noted that the wetsuits constituted sports equipment for use in scuba diving. Id. The CIT, however, concluded that the wetsuits were garments because they were “undeniably articles worn as an outer covering for the human body at a particular time, i.e. while scuba diving.” Id. at 781. The CIT cited to the Explanatory Notes to heading 61.13, which state that the heading includes divers’ suits. Id. at 782. Applying the CIT’s decision in H.I.M./Fathom, we note that the instant wetsuit should also be classified in heading 6113, HTSUS. However, you claim that the bodysurfing suit at issue is classified under heading 9506, HTSUS, since it contains a “character-transforming amount of material not ordinarily found in mere body-covering clothing that functions to provide forms of protection not inherent in common body coverings, e.g., protection against impacts that readily propagate beneath the skin.” Riddell, Inc. v. United States, 754 F.3d 1375, 1380-81 (Fed. Cir. 2014). You state that the eleven fins found on the bodysurfing suit at issue transform it into a piece of sporting equipment, analogous to a surf board, paddle board, wake board or water skis. With regard to your argument that the surfing suit at issue contains a “character-transforming amount of material not ordinarily found in mere body-covering clothing,” upon review we found that the surfing suit at issue comes in multiple sizes, is predominantly made of textile materials and covers the body for modesty and protection from the sun. You contend that the fins/padding should be considered the components that make up the majority of the item and that the neoprene wetsuit simply holds the fins to the anatomic position on and around the body. However, examination of the sample contradicts this assertion. The surfing suit’s construction shows that it does more than simply hold the fins/pads in place. It is a complete suit with the fins/pads sewn into it. Moreover, the record indicates that in the original submission, you stated that the surfing suit at issue consisted of 75% neoprene, with the fins and padding making up only 25% of the item. Upon review, we conclude that this amount is not character transforming. With regard to your argument that the fins found on the surfing suit at issue transform it into a piece of sporting equipment, analogous to a surf board, paddle board, wake board or water skis, we note that as explained in Riddell v. United States, almost no articles listed in the EN are worn, but are articles that are held in the hand or are accessories attached to a user. See Riddell v. United States, 754 F.3d at 1380. There are a few instances in the EN to 9506 where the user would wear the item, but these items are almost exclusively protective in nature and are worn in addition to apparel for a particular sport. For example, these are fencing masks and breast plates, elbow and knee pads, cricket pads, shin-guards, ice hockey pants with built-in guards and pads. Upon review, we conclude that the fins found on the surfing suit at issue are not akin to these items. Therefore we find that they do not transform the bodysurfing suit from apparel to sporting equipment. In accordance with the foregoing, we conclude that the subject bodysurfing suit is classified in subheading 6113.00.90, HTSUS, which provides for “Garments, made up of knitted or crocheted fabrics of heading 5903, 5906 or 5907: Other.” Accordingly, we affirm NY N276485, dated July 8, 2016. Sincerely, Myles B. Harmon, Director Commercial and Trade Facilitation Division