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HQ 956013




July 28, 1994
CLA-2 CO:R:C:T 956013 CAB

CATEGORY: CLASSIFICATION

TARIFF NO.: 6114.30.3070

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

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