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HQ 950905


May 5, 1992

CLA-2 CO:R:C:T 950905 HP

CATEGORY: CLASSIFICATION

TARIFF NO.: 6201.93.3520

Mr. John J. Martuge
Area Director
U.S. Customs Service
John F. Kennedy International Airport
Building 178
Jamaica, NY 11430

RE: Application for further review of Protest 1001-90-006167. Boy's and girls' windbreakers.

Dear Mr. Martuge:

This is in reply to Memorandum PRO-2-05-O:C:R JAD from the Head, Protest and Control Section, New York Region, attaching for our review and advice photocopies of relevant documents pertaining to Protest 1001-90-006167 and application for further review thereof.

FACTS:

This application before us arises from the following scenario:

On December 4, 1989, Entry No. G 730015358-0, importer entered boys' windbreakers, Style 08911, under subheading 6210.40.10, HTSUSA, and paid duties at the rate of 7.6% ad valorem.

On December 5, 1989, Entry No. G 730015388-7, importer entered girls' windbreakers, Style 05900, under subheading 6202.93.45, HTSUSA, and paid duties at the rate of 7.6% ad valorem.

On June 1, 1990, both Entries liquidated. At this time, importer received Entry Summaries (7501s), reclassifying the boys' jackets under subheading 6201.93.35, HTSUSA, and the girls' jackets under subheading 6202.93.45, HTSUSA. This required Rate Advances to 29.5% ad valorem.

On July 16, 1990, counsel received a commercial laboratory report finding that the fabric of which the jackets were constructed was considered water-resistant under the HTSUSA.

On July 18, 1990, importer's counsel Coudert Brothers filed Protest and AFR 1001-0-006166 ({GIRLS}) on the reclassification of the girls' jackets, and Protest and AFR 1001-90-006167 ({BOYS}) on the reclassification of the boys' jackets. A copy of the aforementioned laboratory report was attached to each Protest and AFR.

On November 14, 1991, the Chief, Commercial Operations Branch, J.F.K. Airport Area, notified counsel that AFR {GIRLS} failed to meet the further review criteria of section 174.24, Customs Regulations.

On November 14, 1991, the Chief, Commercial Operations Branch, J.F.K. Airport Area, approved the AFR for Protest {BOYS}.

On December 5, 1991, the AFR for Protest {BOYS} was forwarded to this office. A sample of Style 05900 from the Protest {GIRLS}, not Protest {BOYS}, was included. Counsel stated that the boys' and girls' jackets were produced from identical fabric. Counsel states that a sample of Style 08911 (the style at issue) is unavailable.

On December 27, 1991, the Chief, Commercial Operations Branch, J.F.K. Airport Area, denied the Protest and AFR {GIRLS}. We therefore have no jurisdiction to review this decision. See section 174.31, Customs Regulations.

ISSUE:

Whether the boys' jacket is considered either visibly coated or water-resistant under the HTSUSA?

LAW AND ANALYSIS:

Heading 6210, HTSUSA, provides for garments made up of, inter alia, fabrics of heading 5903, HTSUSA. 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; * * *

As we stated above, no sample exists for the boys' jacket. At the time of liquidation, the National Import Specialist, considered by Customs and the Courts as the expert for this commodity, state that the coating on the jacket results in nothing more than a change in color. Classification in heading 6210, HTSUSA, would therefore be incorrect.

Subheading 6201.91, HTSUSA, provides for, inter alia, men's or boys' windbreakers and similar articles. Within this provision exists a breakout for water resistant garments. Additional U.S. Note 2 to Chapter 62, HTSUSA, defines the term "water resistant" as meaning
garments classifiable [as such] must have a water resistance ... such that, under a head pressure of 600 millimeters, not more than 1.0 gram of water penetrates after two minutes ....

On July 16, 1990, counsel received a commercial laboratory report finding that the fabric of which the jackets were constructed was considered water-resistant under the HTSUSA. The NIS state, however, that the shell fabric with the plastic coating did not extend to the front zipper, leaving a gap of almost three inches where there was no coated material. In HRL 087317 of February 7, 1991, we stated that "[d]ue to the extensive area of the garment not lined with the water resistant fabric, we cannot consider the ~garment" to be water resistant."

The appraised classification was therefore correct, in that the garment is not considered water resistant. At the statistical level, however, the garment was placed in a breakout for men, not boys. No change in duty or textile category is required.

HOLDING:

As a result of the foregoing, the instant merchandise is classified under subheading 6201.93.3520, HTSUSA, textile category 634, as men's or boys' overcoats, carcoats, capes, cloaks, anoraks (including ski-jackets), windbreakers and similar articles (including padded, sleeveless jackets), other than those of heading 6203, anoraks (including ski-jackets), windbreakers and similar articles (including padded, sleeveless jackets), of man-made fibers, other, other, other, other, boys'. The applicable rate of duty is 29.5 percent ad valorem.

You are instructed to Deny the Protest in Full. A copy of this decision should be attached to the Form 19 Notice of Action.

Sincerely,

John Durant, Director
Commercial Rulings Division?

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