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HQ 084568


MARCH 16, 1990

CLA-2 CO:R:C:G 084568 PR

CATEGORY: CLASSIFICATION

TARIFF NO.: 383.90, TSUS

Area Director of Customs
6 World Trade Center
New York, New York 10048

RE: Request for Further Review of Protest 1001-5-008492, Dated July 27, 1985, Concerning Reversible Jackets

Dear Sir:

This ruling is on the protest that was filed against your decision in the liquidation on April 5, 1985, of Entry No. 84-862241, dated August 23, 1984. It concerns the classification of certain jackets produced in Korea.

FACTS:

The merchandise in question is described as girls' reversible jackets. On three separate occasions Customs contacted the importer's attorney and requested a sample. None was submitted. According to the importer and to Customs officials, one side of the jacket was coated with plastics material.

ISSUE:

The importer contends that the plastics coating is nontransparent and, therefore, the garments should be classified under the provision for plastics wearing apparel, in item 772.30, Tariff Schedules of the United States (TSUS). However, Customs classified the garments under the provision for other girls' coats, not ornamented and not knit, of man-made fibers, in item 383.90, TSUS, because the classifying import specialist, after viewing the merchandise, determined that the coating was not nontransparent.

LAW AND ANALYSIS:

The importer has taken issue with Customs' previously determined criteria for nontransparency. However, the transparency of a plastics coating is primarily a factual one
that cannot be resolved at the Headquarters level without a sample. This is true regardless of whether the criteria advanced by the importer, or that followed for years by the Customs Service, is used.

Normally, the failure of the importer to furnish a sample, where one is necessary for the determination of a protest, will require Customs to deny the protest. However, under the instant circumstances, another factor also necessitates the denial of this protest.

The importer's submission is based entirely on the application of Headnote 5, Schedule 3, TSUS, which provided that in the classification of an article wholly or in part of a fabric which is coated or filled with nontransparent plastics, the fabric shall be regarded as being wholly of plastics where the nontransparent plastics forms either the outer surface of the article or the only exposed surface of the fabric. The note does not state that the article will automatically be classified as a plastics article. Under the TSUS, the classification of merchandise was primarily based on the component material of chief value of an article. Headnote 5 is directed towards that determination.

In this regard, it is not stated whether the instant garments have one shell which is reversible or two outer shells. If the jackets only have one reversible shell, then Headnote 5 is not applicable because the plastics coating does not form either the outer surface of the article (there are, in fact, two outer surfaces in that circumstance) or the only exposed surface of the fabric.

If the reversible garment has two outer shells, then Headnote 5 is applicable only to the outer shell with the plastics coating. The determination of the component material of chief value must still be made. In this regard, we are unaware of any allegation by the importer that the costs of the plastics coated shell exceed the costs of the textile materials, and no cost figures were submitted.

HOLDING:

In view of the foregoing, the protest should be denied and a copy of this ruling should be attached to the Form 19, Notice of Action, furnished to the protestant.

Sincerely,

// John Elkins //
for
John Durant, Director

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