CLA-2 CO:R:C:T 953709 CAB
Area Port Director
9901 Pacific Highway
Blaine, WA 98230
Att: Protest Reviewer
RE: Request for Further Review of Protest No. 3004-93-100021,
dated February 17, 1993, concerning the classification of a
diving suit constructed of nylon pile fabric and neoprene rubber
Dear Sir:
This ruling is in response to the protest that was filed by
Leahy & Ward, on behalf of Seaquest Inc., against your decision
concerning the liquidation of diving suits. No samples were
submitted for examination.
FACTS:
The merchandise at issue is described as diving suits made
of neoprene rubber and knit nylon material. The diving suits are
constructed by laminating a center layer of neoprene with nylon
fabric on each side. The importer's counsel states that the
nylon component may be standard nylon on each side or may be
regular nylon on the outer surface and plush or pile on the inner
surface. Only the diving suit with the pile fabric located on
the inside of the garment is the subject of this protest. The
Area Port Director of Blaine states that although no samples of
the instant merchandise are available, all parties agree that
fabric used in the manufacturing of the diving suits is neoprene
pile fabric 6.5 mm in thickness or greater, with knit pile fabric
on the inner surface and plain knit fabric on the outer surface.
This protest concerns entries of the subject merchandise
that were liquidated by your port. The merchandise was
liquidated under subheading 6114.30.3060 of the Harmonized Tariff
Schedule of the United States Annotated (HTSUSA), which provides
for men's other knitted garments. The protestant entered the
merchandise under subheading 4015.90.0050, HTSUSA, which provides
for vulcanized rubber apparel. The protestant further maintains
that if the merchandise is not properly classifiable under
Heading 4015, HTSUSA, in the alternative it is classifiable under
Heading 6113, HTSUSA, which is the provision for garments, made
up of knitted or crocheted fabrics of heading 5903, 5906 or 5907.
ISSUE:
Whether the diving suits at issue which are composed of
neoprene laminated with a knit nylon pile fabric, are
classifiable under Heading 4015, HTSUSA, as rubber apparel,
Heading 6114, HTSUSA, as other knitted garments, or under Heading
6113, HTSUSA, as a garment made up of knitted or crocheted fabric
of Heading 5906, HTSUSA?
LAW AND ANALYSIS:
Classification of goods under the HTSUSA is governed by the
General Rules of Interpretation (GRI's). GRI 1 provides that
classification shall be determined according to the terms of the
headings and any relative section or chapter notes. Merchandise
that cannot be classified in accordance with GRI 1 is to be
classified in accordance with subsequent GRI's, taken in order.
The diving suits at issue are potentially classifiable under
three distinct headings. Heading 4015, HTSUSA, is the provision
for articles of apparel and clothing accessories (including
gloves), for all purposes, of vulcanized rubber other than hard
rubber. Heading 6113, HTSUSA, is the provision for garments,
made up of knitted or crocheted fabrics of heading 5903, 5906, or
5907. The other possibility is Heading 6114, HTSUSA, which is
the provision for other garments, knitted or crocheted.
The protestant contends that the merchandise in question can
not be classified solely on the basis of GRI 1 and that GRI 3
must be consulted to properly classify the instant merchandise.
The protestant bases this position on the fact that the
merchandise in question is comprised of textile material and
neoprene rubber. GRI 3(b) provides that the material or
component which imparts the essential character to the goods will
determine the classification. The protestant asserts that the
neoprene rubber portion of the diving suits is more than 6.5mm in
thickness, and as such, imparts the essential character of the
subject goods; therefore, the goods in question should be
classified under Heading 4015, HTSUSA. However, it is Customs
belief that the merchandise can be correctly classified in
accordance with GRI 1 and the applicable legal notes, and resort
to GRI 3 is unnecessary.
To ascertain the proper tariff classification for the
instant merchandise, Customs must initially determine whether the
goods are "of rubber" or "of textile" for classification
purposes. The Explanatory Notes to the Harmonized Commodity
Description and Coding System (EN), although not legally binding,
are the official interpretation of the tariff at the
international level. The EN to Chapter 40, HTSUSA, state that
classification of rubber and textile combinations is essentially
governed by Note 1(ij) to Section XI, HTSUSA, Note 3 to Chapter
56, HTSUSA, Notes 1 and 4 to Chapter 59, HTSUSA, and Note 1(c) to
Chapter 60, HTSUSA.
Note 1(ij) to Section XI, HTSUSA, states the following:
This section does not cover woven, knitted or crocheted
fabrics, felt or nonwovens, impregnated, coated, covered or
laminated with rubber, or articles thereof, of chapter 40.
Note 3 to Chapter 56, HTSUSA, provides:
Headings 5602 and 5603 cover respectively felt and
nonwovens, impregnated, coated, covered or laminated with
plastics or rubber whatever the nature of these materials
(compact or cellular).
In light of Note 3 to Chapter 56, HTSUSA, the subject
merchandise is not classifiable under Chapter 56, HTSUSA, as it
pertains to felts and nonwovens and the subject merchandise is
constructed of knit material.
Notes 1 and 4 to Chapter 59, HTSUSA, state, in pertinent
part:
1. Except where the context otherwise requires, for the
purposes of this chapter the expression "textile fabrics"
applies only to the woven fabrics of chapters 50 to 55 and
headings 5803 and 5806, the braids and ornamental trimmings
in the piece of heading 5808 and the knitted or crocheted
fabrics of heading 6002
* * *
4. For the purposes of heading 5906, the expression
"rubberized textile fabrics" means:
(a) Textile fabrics impregnated, coated, covered or
laminated with rubber:
(i) Weighing not more than 1,500 g/m2; or
(ii) Weighing more than 1,500 g/m2 and containing more
than 50 percent by weight of textile material;
* * *
The protestant contends that since the instant merchandise
is constructed of fabric that weighs more than 1500 grams per
meter squared and does not contain more than 50 percent of
textile material, the fabric is classified in Chapter 40, HTSUSA,
as sheets of rubber, and the diving suit is not classifiable as
an article of textile materials. When examining the instant
merchandise in accordance with Notes 1 and 4 to Chapter 59,
HTSUSA, it seems that the importer's contention is partially
correct. The rubber component of the merchandise exceeds the
weight limitation of Note 1, therefore, it is not classifiable in
Chapter 59, HTSUSA. Moreover, Note 1 to Chapter 59, HTSUSA,
defines "textile fabrics" for purposes of that chapter and
specifically excludes pile fabrics. Thus, a pile fabric
laminated to plastics or rubber, as in this case, is not
classifiable in Chapter 59, HTSUSA. However, Customs does not
believe that a composite good composed of a textile and a
predominate amount of rubber will automatically require the
merchandise to be classifiable as a rubber article under Chapter
40, HTSUSA.
The EN to Heading 4008, HTSUSA, which pertains to sheets of
rubber provide the following:
This heading thus includes:
(A) Plates, sheets and strip of cellular rubber combined
with felt, nonwovens, knitted or crocheted fabric or other
textile fabric, provided that these textile materials are
present merely for reinforcing purposes.
In this respect, unfigured, unbleached, bleached or
uniformly dyed textile fabrics, when applied to one face
only of these plates, sheets or strip, are regarded as
serving merely for reinforcing purposes. Figured, printed
or more elaborately worked textiles and special products,
such as pile fabrics, tulle and lace, are regarded as having
a function beyond that of mere reinforcement.
Plates, sheets and strip of cellular rubber combined
with textile fabric on both faces, whatever the nature of
the fabric, are excluded from this heading (heading 5602,
5603, or 5906).
As stated in the EN to Heading 4008, HTSUSA, in order for a
textile fabric laminated to a rubber to be classified as "of
textile", the textile must be present for more than reinforcement
purposes. The EN go on to state that elaborately worked textiles
and special products, such as pile fabrics, are regarded as
having a function beyond that of mere reinforcement. Thus, when
examining the instant garment which is constructed of pile fabric
and rubber, in accordance with the EN to Heading 4008, HTSUSA, it
would be incorrect to look at the pile fabric portion as present
for merely reinforcement purposes.
The EN specifically exclude plates, sheets and strip of
cellular rubber combined with textile fabric attached on both
sides from classification under Headings 4008, HTSUSA. Since the
instant merchandise is comprised of a cellular rubber with
textile fabrics attached on both sides and it is used for more
than reinforcement purposes, it is apparent that the
fabric/rubber combination which makes up the diving suit at issue
is not intended to be classifiable under Heading 4008, HTSUSA.
Note 1(c) to Chapter 60, HTSUSA, states the following:
1. This chapter does not cover:
* * *
(c) Knitted or crocheted fabrics, impregnated, coated,
covered or laminated, of chapter 59. However, knitted
or crocheted pile fabrics, impregnated, coated, covered
or laminated, remain classified in heading 6001.
In this instance the diving suit is partially constructed of
a nylon knit pile fabric which is classifiable in Heading 6001,
HTSUSA. This type of fabric is specifically provided for in Note
1 (c) to Chapter 60, HTSUSA. Therefore, Chapter 60, HTSUSA,
which is applicable to knitted pile fabrics must be looked to for
guidance in classifying the merchandise at issue. As mentioned
above, Note 4 to Chapter 59, HTSUSA, provides a division by
weight for certain goods classifiable within that chapter, there
is no note containing the weight limitations similar to Note 4 to
Chapter 59, HTSUSA, enumerated in Chapter 60, HTSUSA.
The protestant contends that in spite of the fact that there
is no weight dividing line specifically stipulated for Heading
6001, HTSUSA, at some point merchandise comprised of a
predominate amount of rubber and textile materials will be
classified in Chapter 40, HTSUSA, as a rubber article instead of
as a textile under Chapter 60, HTSUSA. This rationale is
premised on the fact that eventually, due to the amount of rubber
used to construct the final product, as well as the vital
function of rubber in the manufacturing of a diving suit, the
rubber portion ultimately imparts the essential character of the
diving suit, and is then properly classifiable in Chapter 40,
HTSUSA, as a rubber article. The protestant further states that
to suggest that the same logic does not apply in a comparison
between Chapter 40, HTSUSA, and Chapter 60, HTSUSA, is
inconsistent at best.
The protestant requests that Customs ascertain the proper
tariff classification for the diving suit by utilizing the weight
limits stipulated under Note 4(a) to Chapter 59, HTSUSA. It is
Customs belief that this is not the correct way of analyzing and
classifying the instant merchandise as it is partly composed of a
knit pile fabric which is provided for under Chapter 60, HTSUSA,
as opposed to Chapter 59, HTSUSA. As stated above, there is no
note for Chapter 60, HTSUSA, that would support a similar weight
limit for pile fabrics laminated to rubber. Finally, there is no
legal note in Chapter 59, HTSUSA, that would prompt Customs to
apply the weight limitation to the pile fabrics of Chapter 60,
HTSUSA. Additionally, the EN to 4008, HTSUSA, indicate that
fabric such as the instant fabric is not classifiable in that
particular heading. Since there is no provision in the
nomenclature or the EN to view the subject merchandise in light
of the Note 4(a) to Chapter 59, HTSUSA, then Customs will not do
so in this case.
As the diving suit is constructed of fabric classifiable in
Heading 6001, HTSUSA, it is classifiable in Chapter 61, HTSUSA,
which provides for knitted articles of apparel. Since the diving
suit material is classifiable in Heading 6001, HTSUSA, Heading
6113, HTSUSA, is not applicable for classification of the
finished diving suit. Instead, the subject diving suit is
classifiable as an other knitted garment under Heading 6114,
HTSUSA. Support for this position may be found in earlier
Customs rulings which confronted similar issues.
In prior rulings when confronted with the proper
classification of neoprene and nylon diving suits, Customs has
generally classified them under either Heading 6113, HTSUSA, or
6114, HTSUSA. In HRL 088542, May 1, 1992, Customs concluded that
the wetsuits therein which were comprised of a layer of neoprene
rubber "sandwiched" between two layers of textile were
classifiable under either Heading 6113, HTSUSA, or 6114, HTSUSA.
Customs explained that the wetsuits made from a knit or crocheted
fabric laminated to both sides of the neoprene rubber were
classifiable under Heading 6113, HTSUSA, while the wetsuits
constructed from a pile material laminated to the interior
surface were classified under Heading 6114, HTSUSA.
In accordance with GRI 1, the applicable legal notes, EN,
and prior Customs rulings, the diving suit at issue is
classifiable under Heading 6114, HTSUSA, as an other knitted
garment.
HOLDING:
Based on the foregoing, the diving suit at issue is
classifiable under subheading 6114.30.3060, HTSUSA, which
provides for men's other knitted garments. The applicable rate
of duty is 16.1 percent ad valorem and the textile restraint
category is 659.
The protest should be denied. A copy of this decision
should be attached to the Customs Form 19 and provided to the
protestant as part of the notice of action.
In accordance with Section 3(A)(11)(b) of Customs Directive
099 3550-065, dated August 4, 1993, Subject: Revised Protest
Directive, this decision should be mailed by your office to the
protestant no later than 60 days from the date of this letter.
Any reliquidation of the entry in accordance with the decision
must be accomplished prior to mailing of the decision. Sixty
days from the date of the decision the Office of Regulations and
Rulings will take steps to make the decision available to customs
personnel via the Customs Rulings Module in ACS and the public
via the Diskette Subscription Service, Lexis, Freedom of
Information Act and other public access channels.
Sincerely,
John Durant, Director
Commercial Rulings Division