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