CLA-2 CO:R:C:T 956013 CAB
Area Port Director
U.S. Customs Service
9901 Pacific Highway
Blaine, WA 98230
RE: Request for Further Review of Protest No. 3004-94-100026,
dated January 26, 1994
Dear Sir:
This ruling is in response to the protest that was timely
filed by Border Brokerage Company, Inc., on behalf of Oceaner
Sports Inc., against your decision concerning the liquidation of
certain wetsuits. Samples were submitted to the Area Port Director
of Seattle. These samples were not sent to Customs headquarters.
We requested a sample from a member of the importer's staff but it
was never forwarded to this office. Therefore, we will have to
rule on this matter based on the description of the merchandise
provided by the Area Port Director of Seattle and the San Francisco
Customs laboratory.
FACTS:
The merchandise in question is described as styles "Balboa",
"San Juan", and "Islander" wetsuits. The importer describes the
subject wetsuits as "N/Plush" which he states is an abbreviation
used for neoprene that has nylon material laminated to one side and
plush laminated to the other side. The San Francisco Customs
laboratory performed tests on the subject wetsuits and reported
that the sample was composed of a blue nylon material with a looped
pile construction, a black knitted nylon material, and neoprene.
Though not stated, it is assumed that looped pile nylon formed the
interior surface of the wetsuit to provide comfort to the wearer
and to allow the garment to be put on and taken off without
difficulty.
This protest concerns entries of the subject merchandise that
were liquidated by your port. The merchandise was liquidated under
subheading 6114.30.3070 of the Harmonized Tariff Schedule of the
United States Annotated (HTSUSA), which provides for women's or
girls' other knitted garments. The protestant entered the
merchandise under subheading 6113.00.0086, HTSUSA, which provides
for women's or girls' garments, made up of knitted or crocheted
fabrics of heading 5903, 5906, or 5907. The importer contends that
the wetsuits at issue are constructed of fabric without a pile
construction that is laminated to neoprene.
ISSUE:
Whether the subject wetsuits are composed of neoprene
laminated with a knit looped pile fabric and therefore,
classifiable under Heading 6114, HTSUSA, or whether the wetsuits
are composed of neoprene and knit fabric laminated to each side of
neoprene rubber and therefore, classifiable under Heading 6113,
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 wetsuits at issue are potentially classifiable under two
distinct headings. Heading 6113, HTSUSA, is the provision for
garments, made up of knitted or crocheted fabrics of heading 5903,
5906, or 5907. Thus, if a garment is not made of fabric of the
enumerated headings, it cannot be classified within Heading 6113,
HTSUSA. The other possibility is Heading 6114, HTSUSA, which is
the provision for other garments, knitted or crocheted.
The question Customs must initially address is whether the
fabric that the subject wetsuits are comprised of is a fabric of
Headings 5903, 5906, or 5907, HTSUSA. Note 1 to Chapter 59,
HTSUSA, and Note 1(c) to Chapter 60, HTSUSA, must be consulted to
make this determination.
Note 1 to Chapter 59, states, 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.
* * *
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 rubber, as in this case, is not
classifiable in Chapter 59, HTSUSA.
Note 7 to Chapter 61, states:
Garments which are, prima facie, classifiable both in heading
6113 and in other headings of this Chapter, excluding heading
6111, are to be classified in
heading 6113.
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 light of the aforementioned chapter notes, it is clear
that the subject wetsuits are precluded from classification under
Heading 6113, HTSUSA, as they are not composed of fabric of
Headings 5903, 5906, or 5907, HTSUSA. As the subject wetsuits are
constructed of neoprene and knitted pile fabric which is
classifiable under Heading 6001, HTSUSA, they are classifiable as
other knitted garments under Heading 6114, HTSUSA. This
determination is in accordance with 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 953709, dated February 24, 1994, Customs
determined that diving suits composed of neoprene rubber laminated
to a knit nylon fabric was classified under Heading 6114, HTSUSA.
In HRL 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.
HOLDING:
The wetsuits at issue are under subheading 6114.30.3070,
HTSUSA, which provides for women'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 in full. 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