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HQ 082993


November 25,1988

CLA-2 CO:R:C:G 082993 PR

CATEGORY: CLASSIFICATION

TARIFF NO.: Item No. 6202.13.4005 TSUS

Ms. Mary Ann Ost
H. Z. Bernstein Co., Inc.
One World Trade Center, suite 1973
New York, New York 10048

RE: Classification of women's raincoats

Dear Ms. Ost:

This is in reply to your letter of September 14, 1988, on behalf of Saxton Hall Ltd., concerning the tariff classification and textile and apparel restraint category applicable to certain women's raincoats.

FACTS:

Submitted with your request was one sample garment and five swatches of fabric from which the outer shell of the garments will be made.

The sample garment, style 8153, manufactured in Korea, is a knee-length coat with a light-weight woven plaid lining and a much heavier woven outer shell. The outer shell is stated to be sixty-five percent polyester and thirty-five percent cotton. It has a self-fabric belt, a detachable hood, a rear yoke that attaches along its bottom edge to the body of the garment by means of two buttons, and two inserted hip area pockets. It also has a five-button full front opening with plackets and two free-hanging front pointed yokes that attach to the body of the garment by means of single buttons.

Each of the sample fabrics has an application of plastics material on its inner surface.

ISSUE:

The issue presented is whether there is sufficient plastics applied to the fabric swatches for them to be considered "impregnated, coated, or covered" under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA).

LAW AND ANALYSIS:

The subject garments are specifically described in Subheading 6202.13.4005, as women's raincoats of man-made fibers. However, Note 5 to Chapter 62, HTSUSA, where that subheading is found, provides, in effect, that garments which are, prima facie, classifiable in Headings 6210 and 6202, will be classified in Heading 6210.

Heading 6210, HTSUSA, provides for garments made up of fabrics of various headings, including Heading 5903. Heading 5903 provides for textile fabrics impregnated, coated, covered, or laminated with plastics (except tire cord which is provided for in Heading 5902).

Note 2 of Chapter 59, HTSUSA, provides, in pertinent part:

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 (usually chapters 50 to 55, 58 or 60); for the purpose of this provision, no account should be taken of any resulting change of color.

It is our view that the wording of Note 2(a)(1) ("visible to the naked eye") is a clear expression by the drafters of the Harmonized System that a significant, if not substantial, amount of material must be added to a fabric for it to be considered "impregnated, coated, or covered."

Therefore, following the strict wording of Note 2(a)(1), for a fabric to be considered "impregnated, coated, or covered" within that requirement, the plastics material added to the fabric must be visibly distinguishable from that fabric without the use of magnification.

Under magnification, it is obvious that, as noted above, each of the swatches has a plastics application on its inner surface. However, we are precluded from using magnification to determine whether a fabric is "impregnated, coated, or covered" with plastics under the HTSUSA. Note 2(a) requires that the plastics must be "seen with the naked eye" otherwise than by a change in color.

Applying this statutory test to the submitted samples, using normally corrected vision in a well lighted room, none of the submitted samples meet the criterion of having the plastics application visible to the naked eye. Accordingly, the fabrics comprising the outer shell would not be classifiable under Heading 5903 and garments made from those fabrics do not, therefore, qualify for classification under Heading 6210. Since Heading 6210 is not in issue, Note 5 to Chapter 62 has no application and the garments are classifiable under the subheading which specifically describes them.

HOLDING:

Coats, as represented by the submitted sample, made of fabrics which correspond to the submitted swatches, are classifiable under Subheading 6202.13.4005, with duty at the rate of 29.5 percent ad valorem. The Textile and Apparel Category applicable to this merchandise is 635. This classification represents the present position of the Customs Service under the HTSUSA. If there are changes before the effective dated of January 1, 1989, this advice may not continue to be applicable.

Under the Tariff Schedules of the United States Annotated (TSUSA), the sample, made from any of the submitted swatches, would be classifiable under the provision for women's coats designed for rainwear, almost wholly of fabrics that have been coated or filled with rubber or plastics, in item 376.5612, with duty at the rate of 7.6 percent ad valorem and with a textile and apparel category of 635. Note that the requirements under the TSUSA for a "coating or filling" are different than the requirements for an "impregnation, coating, or covering" under the HTSUSA.

Sincerely,

John Durant, Director

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