HQ 0953709 - 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 - United States International Trade Commision Rulings

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HQ 953709

February 24, 1994

CLA-2 CO:R:C:T 953709 CAB

CATEGORY: CLASSIFICATION

TARIFF NO.: 6114.30.3060

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

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