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HQ 085679


November 3, 1989

CLA-2 CO:R:C:G 085679 HP

CATEGORY: CLASSIFICATION

TARIFF NO.: 5407.42.0030; 6202.93.4500

Mr. William J. Maloney
Rode & Qualey
295 Madison Avenue
New York, NY 10017

RE: Women's jackets and coated fabric

Dear Mr. Maloney:

This is in reply to your letter of August 22, 1989, concerning the tariff classification of coated fabric and ski jackets, produced in Japan and Hong Kong, respectively, under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). Please reference your client Apparel Connections, Inc.

FACTS:

The merchandise at issue consists of coated nylon fabric and women's ski jackets composed of this fabric.

The fabric, article number XYA-0552-WMC, is woven of 100% nylon and coated with 500 millimeters of white acrylic. You have submitted both coated and non-coated samples of 14 colors described as follows:

COLOR NAME COLOR NUMBER
Black 1000
Charcoal 1200
Silver 1300
Navy 2000
Azure 2400
Royal 2800
Jade 4000
Teal 4200
Mint 4400
Ruby 6000
Carnation 6200

Fuchsia 6400
Periwinkle 7500
Grape 7800

The jacket has a shell composed of the acrylic coated nylon fabric described above, a lining of 100% nylon, and a batting of 100% polyester fiber quilted to the jacket lining. The jacket extends to approximately waist length, has a full front opening secured by a high-rise zipper, two zippered pockets, partly elasticized waist, elasticized cuffs, and a hanger loop sewn to the back of the garment mid-way between the shoulder seams. You have stated that the garment is considered water resistant as defined in Additional U.S. Note 2 to chapter 62, HTSUSA.

ISSUE:

Whether the fabric is considered coated with plastics under HTSUSA; whether the garment is made up of fabrics coated with plastics under HTSUSA?

LAW AND ANALYSIS:

Fabrics

Heading 5903, HTSUSA, provides for classification of textile fabrics impregnated, coated, covered or laminated with plastics, other than tire cord covered by Heading 5902.

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

Heading No. 59.03 applies to:

(a) Textile fabrics, impregnated, coated, covered or laminated with plastics, ... 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 colour; * * *

The wording of Note 2(a)(1) ("cannot be seen with 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, covered or laminated. The plastics material added to the fabric must be visibly distinguishable from that fabric without the use of magnification. Any change in the "feel" of the material is not taken into account. In essence, the plastics coating must alter the visual characteristic of the fabric in order for the fabric to be considered coated with plastics.

Applying the statutory test to the submitted samples, using normally corrected vision in a well lighted room, we note that the instant merchandise has a whitish cast on the surface caused by the acrylic; this uniform change, however, is nothing more than a change in color. The white speckled appearance, seemingly caused by burst bubbles, does visually alter the surface
character of the fabric underneath the dots, and is visible to the naked eye. Fabrics spattered with visible plastics are provided for by heading 5903, however, only when the plastics are capable of forming a bond to other fabrics on the application of heat or pressure. See HRL 083993 of June 20, 1989 (fusible interlining material). The fabric, therefore, is not considered coated with plastics.

Jacket

Heading 6202, HTSUSA, provides for, inter alia, women's anoraks and similar articles, including ski-jackets. Heading 6210, HTSUSA, provides for garments made up of fabrics of, inter alia, heading 5603 (nonwovens). The General Rules of Interpretation (GRI's) to the HTSUSA govern the classification of goods in the tariff schedule. GRI 1 states, in pertinent part:

... classification shall be determined according to the terms of the headings and any relative section or chapter notes ....

Goods which cannot be classified in accordance with GRI 1 are to be classified in accordance with subsequent GRI's, taken in order.

Note 5 to Chapter 62, HTSUSA, states that "[g]arments which are, prima facie, classifiable both in heading 6210 and in other headings of this chapter, ... are to be classified in heading 6210." Therefore, if the jacket is considered "made up of fabrics of heading 5603," classification in heading 6210 would be correct.

The question of whether a nonwoven interlining is considered when classifying a jacket was recently addressed. In HRL 085149 PR of October 3, 1989, we stated:

In our ruling of June 13, 1989, file
083721, a jacket with a heavy nonwoven fabric insulating layer was determined to be clas- sifiable in [heading 6210]. This result was obtained because the heavy nonwoven fabric contributed significantly to the garment and, therefore, could not be ignored. Note that in view of the classification, even though the garment was determined to be "made up of fabrics" of heading 5603, the garment was not determined to have its essential character imparted by the nonwoven fabric. While not expressly stated in the ruling, the nonwoven insulating layer was much heavier than that normally found in similar garments. We are informed that a normal nonwoven insulating layer weighs 8 ounces per square yard.

The Explanatory Notes to the HTSUSA constitute the official interpretation of the tariff at the international level. The General Explanatory Note to Chapter 62 states that "[t]he clas- sification of goods in this Chapter is not affected by the presence of parts or accessories ..." of various materials, unless "the presence of such materials constitutes more than mere trimming...." Since normal linings fall within the category of "mere trimming," the 8 ounce nonwoven lining does not affect the classification of the instant garments. The jacket, therefore, is not classifiable in heading 6210.

HOLDING:

As a result of the foregoing, the instant merchandise is classified as follows:

The fabric, under subheading 5407.42.0030, HTSUSA, textile category 620, as woven fabrics of synthetic filament yarn, including woven fabrics obtained from materials of heading 5404, other woven fabrics, containing 85 percent or more by weight of filaments of nylon or other polyamides, dyed, weighing not more than 170 g/m2. The applicable rate of duty is 17 percent ad valorem.

The jacket, under subheading 6202.93.4500, HTSUSA, textile category 635, as women's or girls' overcoats, carcoats, capes, cloaks, anoraks (including ski-jackets), windbreakers and similar articles (including padded, sleeveless jackets), other than those of heading 6204, anoraks (including ski-jackets), windbreakers and similar articles (including padded, sleeveless jackets), of man-made fibers, other, other, other, water resistant. The applicable rate of duty is 7.6 percent ad valorem.

The designated textile and apparel category may be subdivided into parts. If so, visa and quota requirements applicable to the subject merchandise may be affected. Since part categories are the result of international bilateral agree- ments which are subject to frequent renegotiations and changes, to obtain the most current information available, we suggest that you check, close to the time of shipment, the Status Report On Current Import Quotas (Restraint Levels), an issuance of the U.S. Customs Service, which is updated weekly and is available at your local Customs office.

Due to the changeable nature of the statistical annotation (the ninth and tenth digits of the classification) and the re- straint (quota/visa) categories, you should contact your local Customs office prior to importing the merchandise to determine
the current applicability of any import restraints or requirements.

Sincerely,

John Durant, Director
Commercial Rulings Division

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