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HQ 953011


February 9, 1993

CLA-2 CO:R:C:T 953011 SK

CATEGORY: CLASSIFICATION

TARIFF NO.: 6202.12.2010; 6202.92.2060; 6211.32.0070; 6211.42.0070.

Assistant District Director
U.S. Customs Service
909 First Avenue, Rm. 2039
Seattle, Washington 98174

RE: Decision on application for further review of protest no. 3001-92-100663; classification of "oilskin" rain garments; oilcloth; plastic-coated fabric; impregnated fabric; Note 5 to Ch. 59; plastic coating must be "visible to the naked eye"; not classifiable under heading 6210, HTSUSA; heading 6202 and 6211, HTSUSA.

Dear Sir:

This is a decision on application for further review of a protest timely filed by Foxfire Inc., on August 10, 1992, against your decision on the classification of oilskin rain garments.

FACTS:

Samples of the oilskin cloth from which the rain garments are manufactured were submitted to Customs for examination. This office received samples of the cloth in the following states: undyed and uncoated; dyed and uncoated; dyed and coated.

The articles at issue are oilskin rain garments which are manufactured in Australia. The garments are coats, jackets and vests made from a 100 percent cotton fabric which has been dyed and thoroughly impregnated with an oil and wax compound. It is asserted by protestant that this process makes the articles waterproof. These garments are commercially referred to as oilskins.

All of the entries were initially entered under subheading 6210.30.2020, HTSUSA, with an attendant rate of duty of 6.6 percent ad valorem. The importer subsequently received a notice of action indicating that the goods would be classified upon
liquidation under subheadings 6202.12.2010, 6202.92.2060, 6211.32.0070 and 6211.42.0070, HTSUSA. The first two subheadings carry a duty of 9.5 percent ad valorem, the latter two 8.6 percent ad valorem.

ISSUE:

Whether the oilskin garments at issue have been impregnated with an oil and wax compound so that such impregnation is visible to the naked eye and the garments are deemed made up of fabrics of heading 5907, HTSUSA, for purposes of classification under heading 6210, HTSUSA?

LAW AND ANALYSIS:

Classification of merchandise under the HTSUSA is in accordance with the General Rules of Interpretation (GRI's). GRI 1 requires that classification be determined according to the terms of the headings and any relative section or chapter notes and, unless otherwise required, according to the remaining GRI's, taken in order.

Heading 6210, HTSUSA, provides for "garments made up from fabrics of headings 5602, 5603, 5903, 5906 or 5907." The Explanatory Notes (EN) to heading 6210, HTSUSA, at page 856, state that the heading includes "raincoats, oilskins, divers' suits ..." [emphasis added]. Notwithstanding that the EN to heading 6210, HTSUSA, expressly provide for oilskins, the language of heading 6210 nevertheless requires that oilskins "must be made up from fabrics of heading 5907" to be classifiable within this provision.

The terms of Note 5(a) to Chapter 59, state that "heading 5907 does not apply to:

(a) 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 shall be taken of any resulting change of color."

The sole criterion upon which Customs is to determine whether fabric is coated or impregnated for purposes of classification under heading 5907, HTSUSA, is clear and unambiguous: fabric is classifiable under heading 5907 if the impregnation or coating is visible to the naked eye. This standard does not allow the examiner to take the "effects" of the coating or impregnation into account. Impregnation or coating will often lend a sheen to fabric, result in a color change, or increase a fabric's stiffness; these are factors which, while indicative of the presence of coating or impregnation, may not be
taken into account in determining whether the coating itself is visible to the naked eye. If, upon unaided visual examination, there is the suggestion of the presence of coating or impregnation, it is then within Customs' discretion to examine the fabric under magnification. See Headquarters Ruling Letter (HRL) 082644, dated March 2, 1990.

In the instant case, there is no doubt that the impregnated fabric swatches have a slight sheen and tacky feel which the untreated samples do not. This office is of the opinion that while it is apparent that the fabric has a slight sheen, the impregnation is not visible to the naked eye. The use of magnification yielded similar results; there is an undeniable sheen to the fabric, but no impregnation or coating is actually discernible.

Protestant also asserts that the wax and oil impregnation has created a film which occupies the space in the fabric's interstices, thus obscuring the weave and making the fabric waterproof. Upon examination, we were unable to see coating- filled interstices in any of the samples submitted, nor any obscuring of the fabrics' weave; the same result was yielded under magnification. (Note, we did not submit these samples to the Customs laboratory for tests which would determine whether the treated samples are waterproof, as asserted, or merely water repellant, as such a finding is not germane to the classification of these articles.)

Protestant contends that "when an explanatory note specifically states how an article should be classified, its language should be relied on unless it is obviously contrary to some other clear intent of the Tariff Schedule." While this is generally an accurate statement, in this case, we are required to circumvent the language of the EN to heading 6210, HTSUSA, in compliance with Legal Note 5 to Chapter 59 which limits the articles encompassed within heading 5907.

Notwithstanding the language in the EN to heading 6210, HTSUSA, oilskins are not unconditionally classifiable within this heading. The terms of heading 6210, HTSUSA, require that garments classifiable within this provision be made up from fabrics of heading 5907. As we have set forth supra, Legal Note 5(a) to Chapter 59, which governs heading 5907, HTSUSA, requires that coating and impregnations be visible to the naked eye in order for fabrics to be classifiable within this provision. It would appear that Legal Note 5(a) to Chapter 59 severely curtails the applicability of the EN to heading 6210, HTSUSA, at least where oilskins are at issue. In this situation, the Legal Notes supersede the terms of the EN as the EN are not binding on

Customs, but rather constitute the official interpretation of the tariff at the international level.

In classifying the subject garments, Customs is bound by the terms of heading 6210, HTSUSA, and, by implication, by Legal Note 5(a) to Chapter 59. As a consequence, Customs is prohibited from classifying those oilskins within heading 6210, HTSUSA, which have not been coated or impregnated to the extent that such treatment is visible to the naked eye. Accordingly, this office finds that the merchandise the subject of this protest is not classifiable under heading 6210, HTSUSA, because the fabric's oil and wax impregnation is not visible to the naked eye. This conclusion is reached pursuant to the terms of headings 6210, HTSUSA, and Legal Note 5(a) to Chapter 59.

Although protestant states that the amount of oil and wax on the subject garments is as great as that to be found on any oilskin fabric, and therefore it would appear that Customs is effectively precluding the classification of oilskin garments from heading 6210, HTSUSA, that is a matter of conjecture. Protestant may be correct in his assertion that most oilskin garments contain amounts of oil and wax similar to those garments at issue. However, as technologies change and as different types of oilskins are imported into the United States, we will apply the aforementioned criteria on a case by case basis.

Heading 6202, HTSUSA, provides for women's or girls' overcoats, carcoats, capes, cloaks, anoraks (including ski jackets), wind-cheaters, wind-jackets and similar articles , other than those of heading 6204, HTSUSA. Heading 6211, HTSUSA, provides for track suits, ski suits and swimwear; other garments. As all of the articles at issue are either rain coats, jackets or vests, they are classifiable under headings 6202 and 6211, HTSUSA.

HOLDING:

The subject merchandise is classifiable under the following subheadings:

* 6202.12.2010, HTSUSA, which provides for women's and girls' overcoats, carcoats, capes, cloaks and similar coats: of cotton: other... raincoats: women', dutiable at a rate of 9.5 percent ad valorem, with a textile quota category of 335;

* 6202.92.2060, HTSUSA, which provides for women's and girls' anoraks (including ski jackets), wind-breakers and similar articles (including padded, sleeveless jackets): of cotton: other... other: women's, dutiable at a rate of 9.5 percent ad valorem, with a textile quota category of 335;

* 6211.32.0070, HTSUSA, which provides for track suits, ski suits and swimwear; other garments, men's or boys': of cotton... vests, dutiable at a rate of 8.6 percent ad valorem, with a textile quota category of 359;

* 6211.42.0070, HTSUSA, which provides for track suits, ski- suits and swimwear; other garments, women's or girls': of cotton... vests, dutiable at a rate of 8.6 percent ad valorem, with a textile quota category of 359.

As the rate of duty under the classification indicated above is the same as the rate under which the subject merchandise was entered, you are instructed to deny the protest in full. A copy of this decision should be furnished to the protestant with the Form 19 notice of action.

Sincerely,

John Durant, Director

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