Modification of NY B89694 dated October 6, 1997; unisex sportshort

HQ 961087 June 5, 1998 CLA-2 RR:CR:TE 961087 SG CATEGORY: Classification TARIFF NO: 6113.00.9052 Ms. Jennifer Quist Sport Works Limited 945 Lakeview Parkway, suite 120 Vernon Hills, IL 60061 RE: Modification of NY B89694 dated October 6, 1997; unisex sport short Dear Ms. Quist: On October 6, 1997, Customs issued to you New York Ruling Letter B89694, which addressed the classification of a number of items including a unisex sport short, item number 20390. The sports short was classified in subheading 6114.30.3070, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), which provides for other garments, knitted or crocheted: Of man-made fibers: Other: Other: Women' s or girls'. Upon re-examination of the sample sport short, we are of the opinion that an error was made in the classification of the sport short. This ruling modifies that classification. Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. 1625(c)(1)), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act, Pub. L. 103-182, 107 Stat. 2057, 2186 (1993), notice of the proposed modification of NY B89694 was published on April 29, 1998, in the Customs Bulletin, Volume 32, Number 17. FACTS: The unisex sport short, item 20390, is constructed of a laminated fabric consisting of inner and outer layers of knit fabric stated to be of man-made fibers with a center layer of expanded neoprene. It has a side zipper. A re-examination of the submitted sample revealed that neither fabric layer is of a pile construction. LAW AND ANALYSIS: The classification of goods under the HTSUSA is governed by the General Rules of Interpretation (GRI's) taken in order. GRI 1 provides that classification shall be determined according to the terms of the headings and any relative section of 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's may be applied, taken in order. In prior rulings when confronted with the proper classification of garments constructed of neoprene and knit nylon, Customs has generally classified them under either Heading 6113, HTSUSA, as garments, made up of knitted or crocheted fabrics of heading 5903, 5906 or 5907, or under Heading 6114, HTSUSA, as other garments, knitted or crocheted. In HQ 088542, May 1, 1992, Customs concluded that a garment which was comprised of a layer of neoprene rubber "sandwiched" between two layers of textile fabric was classifiable under either Heading 6113, HTSUSA, or 6114, HTSUSA. Customs explained that the garment made from a knit or crocheted fabric laminated to both sides of the neoprene rubber was classifiable under Heading 6113, HTSUSA, while the garment constructed from a pile material laminated to the interior surface was classifiable under Heading 6114, HTSUSA. In HQ 95 1357, January 12, 1993, Customs ruled that textile covered neoprene shorts made of knitted fabric that is classifiable in Heading 5906, which provides for rubberized textile fabric other than those of Heading 5902, were classifiable in Heading 6113. Neoprene shorts consisting of a knit pile construction, were precluded from classification under Heading 6113, as they were not composed of fabric of Heading 5903, 5906 or 5907, and were classified in Heading 6114 We note that Note 7 to Chapter 61 states that garments which are prima facie, classifiable both in Heading 6113 and in other headings of Chapter 61, are to be classified in Heading 6113. The garment here at issue is a textile covered neoprene short made of knitted fabric that is classifiable in Heading 5906, which provides for rubberized textile fabric, other than those of Heading 5902. Accordingly, the subject short is properly classified in Heading 6113, as an other knitted garment. Inasmuch as neither fabric layer of the sample garment is a pile construction, the garment cannot be classified in Heading 6114. HOLDING: NY B89694, dated October 6, 1997, is hereby modified. The sport short is properly classified in subheading 6113.00.9052, HTSUSA, which provides for "Garments, made up of knitted or crocheted fabrics of Heading 5903, 5906, or 5907: Other Trousers, breeches and shorts: Other: Women's or girls'." The applicable rate of duty will be 7.4 percent ad valorem and the textile restraint category is 648. In accordance with 19 U.S.C. 1625(c)(1), this ruling will become effective 60 days after its publication in the Customs Bulletin. Publication of rulings or decisions pursuant to 19 U.S.C. 1625(c)(1) does not constitute a change of practice or position in accordance with section 177.10(c)(1), Customs Regulations (19 CFR 177.10(c)(1)). Sincerely, John Durant, Director Commercial Rulings Division