CLA-2 RR:CTF:TCM 967613 ASM
Vicky Olson
International Facilitator
Stearns® Inc.
P.O. Box 1498
St. Cloud, Minnesota 56302
RE: Request for reconsideration of NY L82124: Unisex immersion suit
Dear Ms. Olson:
This is in response to a letter, dated March 10, 2005, on behalf of Sterns, Inc., requesting reconsideration of Customs and Border Protection (CBP) New York Ruling letter (NY) L82124, dated February 10, 2005, which classified a unisex immersion suit under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). Samples have been submitted to CBP for examination.
FACTS:
In NY L82124, the subject merchandise is identified as a child’s unisex immersion suit (Style I590), which is used for abandoning ship. Style I590 is also made in adult sizes. The full body suit covers the head, body, hands, and feet. The hand and foot coverings (not a boot) are fully connected by seams to the rest of the suit. Rubber soles are glued to the bottom of each foot. There are no detachable pieces to the suit. However, in the front, there is a heavy-duty zipper with rubber pull-tab and an attached whistle. Adjustable flaps are secured by hook and loop closures at the ankle, wrist, and neck to secure the suit and achieve a closer fit. Reflective strips are attached to the front and back of the suit. There is a 10 inch x 18 inch rectangular shaped head support inflatable pillow sewn to the back of the neck/shoulder area. Rubber tubing attached to the pillow must be activated with a special device to cause inflation. The inflatable device is contained in an upper breast pocket sewn to the front of the suit. The entire suit is composed of neoprene sheeting of cellular rubber and laminated on both sides with knit fabric. The knit fabrics are not of pile construction. The suits are imported with a textile PVC-coated storage bag.
In NY L82124, the subject garment was classified in subheading 6113.00.9070, HTSUSA, which provides for “Garments, made up of knitted or crocheted fabrics of heading 5903, 5906 or 5907: Other, Overalls and coveralls: Other: Women’s or girls’ ”, with a corresponding textile quota category of 659. You disagree with this classification and claim that the immersion suit should be classified in subheading 4015.90.0000, HTSUSA, which provides for “Articles of apparel and clothing accessories (including gloves, mittens and mitts), for all purposes, of vulcanized rubber other than hard rubber: Other”.
ISSUE:
What is the proper classification for the merchandise?
LAW AND ANALYSIS:
Classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) is made in accordance with the General Rules of Interpretation (GRI). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative Section or Chapter Notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRI may then be applied. The Harmonized Commodity Description and Coding System Explanatory Notes (“ENs”) constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUSA and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
The provisions under consideration are as follows:
Articles of apparel and clothing accessories (including
gloves, mittens and mitts), for all purposes, of vulcanized
rubber other than hard rubber:
4015.90.00 Other
* * *
Rubberized textile fabrics, other than those of heading 5902:
* * *
Garments, made up of knitted or crocheted fabrics of
heading 5903, 5906 or 5907:
Other
* * *
The immersion suit at issue is potentially classifiable under two 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.
You contend that the merchandise in question is classifiable pursuant to a GRI 3 analysis because the immersion suits are comprised of textile material and neoprene rubber. You cite GRI 3(b) which provides that the material or component that imparts the “essential character” to the goods, will determine the classification. Pursuant to a GRI 3(b) analysis, you argue that the neoprene rubber portion of the immersion suit imparts the essential character of the subject goods. Therefore, the goods in question should be classified under heading 4015, HTSUSA.
We do not agree that the merchandise is classifiable in accordance with GRI 3. Rather, it is our position that the merchandise is 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, CBP must initially determine whether the goods are of rubber or of textile for classification purposes. The EN to Chapter 40, HTSUSA, states that classification of rubber and textile combinations is essentially governed by Note 1(ij) to Section XI, Note 3 to Chapter 56, and Note 4 to Chapter 59. 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).
Inasmuch as the subject merchandise is constructed of knit material, pursuant to Note 3 to Chapter 56, HTSUSA, the subject merchandise is not classifiable under Chapter 56, HTSUSA, as it pertains to felts and nonwovens. 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 to 6006.
* * *
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;
* * *
This heading does not, however, apply to plates, sheets or strip of cellular rubber, combined with textile fabric, where the textile fabric is present merely for reinforcing purposes (chapter 40), or textile products of heading 5811
In this instance, we do not believe that a 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 vulcanized rubber, other than hard rubber, provide the following:
This heading covers: (1) Plates, sheets and strip (having any cross-sectional dimension
exceeding 5 mm) in the length, or merely cut to length or into
rectangles (including squares).
(2) Blocks of regular geometric shape.
* * *
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 56.02, 56.03, or 59.06).
The EN to heading 4008 specifically excludes plates, sheets and strip of cellular rubber combined with textile fabric attached on both sides from classification under heading 4008, HTSUSA. Since the instant merchandise is comprised of a cellular rubber with textile fabric 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 classifiable under heading 4008, HTSUSA. Furthermore, the textile fabric that is adhered to either side of the cellular rubber is not for mere reinforcement. Inasmuch as the fabric would not be classifiable in heading 4008, HTSUSA, the finished garment cannot be classified in heading 4015, HTSUSA.
In view of the foregoing, we find that the subject article is not classifiable in Chapter 40, HTSUSA, and would therefore not be prohibited from classification as a textile in Chapter 61, HTSUSA, pursuant to Note 1(ij), Section XI, HTSUSA, which excludes knitted fabrics laminated with rubber of Chapter 40. CBP has consistently classified similar neoprene and nylon diving suits in either Heading 6113, HTSUSA, or 6114, HTSUSA. In Headquarters Ruling Letter (HQ) 953709, dated February 24, 1994, CBP considered the classification of a diving suit constructed of a center layer of neoprene laminated with nylon pile fabric on each side, which was found to be classifiable as a textile garment in subheading 6114.30.3060, HTSUSA, pursuant to a GRI 1 analysis in accordance with the terms of the headings and the relative Section and Chapter Notes of the tariff. In HQ 088542, dated 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. Although HQ 950562, dated January 9, 1992, applies a GRI 3 analysis in classifying a buoyancy vest constructed of knit pile fabric laminated with neoprene panels, the article was still classified as a textile article in subheading 6113.00.0086, HTSUSA. It is our determination that in accordance with GRI 1, the applicable legal notes, EN’s, and prior Customs rulings, the immersion suit at issue is classifiable under Heading 6113, HTSUSA, as “Garments, made up of knitted or crocheted fabrics of heading 5903, 5906 or 5907”. Accordingly, we find that NY L82124, dated February 10, 2005, correctly classified the subject merchandise in subheading 6113.00.9070, HTSUSA.
Finally, we note that the subject immersion suits are imported with a textile PVC-coated storage bag, which has been specially constructed in the form of a cylindrical shaped duffle bag to efficiently store and protect the immersion suit. There is a single loop handle on the side of the bag and metal snaps at the top opening of the bag for securing the contents and closing the bag. GRI 5 (a) is applicable to this specialized container because it is presented with the articles for which it is intended and should be classified with such articles. The EN to Rule 5(a) further notes that this rule applies only to those containers which are specially shaped or fitted to contain a specific article, are suitable for long-term use, serve to protect the article during transport or storage, are of a kind normally sold with such articles, and do not give the whole its essential character. Since the textile bag is presented with the immersion suit, specially shaped and fitted to protect and store the immersion suit, suitable for long-term use, and doesn’t provide the essential character to the whole, we find that the containers are classified pursuant to GRI 5(a) and shall be classified with the immersion suit in subheading 6113.00.9070, HTSUSA.
HOLDING:
The subject merchandise is correctly classified in subheading 6113.00.9070, HTSUSA, which provides for, “Garments, made up of knitted or crocheted fabrics of heading 5903, 5906 or 5907: Other, Overalls and coveralls: Other: Women’s or girls”. The general column one duty rate is 7.1 percent ad valorem. The textile category is 659.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation