Request for Further Review of Protest 1001-0-006459, Dated August 1, 1990, Concerning the Classification of Certain Jackets

HQ 950208 December 17, 1991 CLA-2 CO:R:C:T 950208 PR CATEGORY: Classification TARIFF NO.: 6210.50.1020 Area Director of Customs John F. Kennedy International Airport Building 178 Jamaica, New York 11430 RE: Request for Further Review of Protest 1001-0-006459, Dated August 1, 1990, Concerning the Classification of Certain Jackets Dear Sir: This ruling is on the protest filed against your decision in the reliquidation on February 9, 1990, of an entry of certain garments. Our decision on the matter follows. FACTS: Three samples were submitted. Each is a woman's woven windbreaker-style jacket. All three have nylon outer shells with a plastics material applied to their inner (nonexposed) surface. ISSUE: The issue presented is whether the plastics application on the outer shells of the sample garments is sufficient to cause those fabrics to be considered "coated or covered" for tariff purposes. LAW AND ANALYSIS: Imported goods are classifiable according to the General Rules of Interpretation (GRI's) of the Harmonized Tariff Schedule of the United States (HTSUSA). GRI 1 provides that for legal purposes, classification shall be determined according to the terms of the headings in the tariff and according to any pertinent section or chapter notes. It appears that GRI 1 governs the classification of the subject merchandise.  2 The submitted samples are described in Subheading 6202.93, HTSUSA, as anoraks, wind breakers, or similar garments, of man-made fibers. As such, they are classifiable under that subheading unless they are also described in Heading 6210, HTSUSA. If they are, then Note 5 to Chapter 62, HTSUSA, requires classification to be in Heading 6210. That note states: Garments which are, prima facie, classifiable both in heading 6210 and in other headings of this chapter, excluding heading 6209, are to be classified in heading 6210. Heading 6210 provides for "Garments, made up of fabrics of heading 5602, 5603, 5903, 5906 or 5907". Heading 5903 provides for textile fabrics impregnated, coated, covered, or laminated with plastics. However, in order to determine the applicability of that heading to a particular fabric, Note 2 to Chapter 59, HTSUSA, must be complied with. That note provides, in pertinent part, that Heading 5903 applies to: (a) Textile fabrics, impregnated, coated, covered or laminated with plastics, whatever the weight per square meter and whatever the nature of the plastic material (compact or cellular), other than: (1) Fabrics in which the impregnation, coating or covering cannot be seen with the naked eye * * * for the purpose of this provision, no account should be taken of any resulting change of color; The samples are made of outer shell fabrics with a white plastics application on their interior surface. In looking at that surface, without taking into consideration the change in color caused by the plastics, the unaided eye is able to detect the presence of something. Under magnification, it is obvious that what the eye has detected is the presence of the plastics material. As stated in Customs Headquarters Ruling Letter (HRL) 082644, dated March 2, 1990, and HRL 089541, dated August 13, 1991: [I]f a visual examination suggests the presence of a coating, it is within Customs' discretion to examine the fabric under magnification to confirm or refute the initial observation. Accordingly, the fabrics from which the sample garments are constructed are classifiable in Heading 5903, and, pursuant to Note 5 of Chapter 62, the garments are properly classifiable under Heading 6210.  HOLDING: The samples are classifiable under the provision for other women's or girls' garments made of fabrics of Heading 5903, of man-made fibers, in subheading 6210.50.1020, HTSUSA, with duty, if a product of Hong Kong, at the rate of 7.6 percent ad valorem. The designated textile and apparel category applicable to this merchandise is 635. The protest should be granted in full and a copy of this ruling should be attached to the Form 19, Notice of Action, furnished to the protestant. Sincerely, John Durant, Director Commercial Rulings Division