HQ 0953797 - Protest and Request for further review no. 5301-90-000042; boys' woven nylon jackets; water-resistance; headings 5603 and 5903; Legal Note 2(a)(1) to Chapter 59; Additional U.S. Note 2 to Chapter 62; Explanatory Notes to Chapter 62; subheadings 6210.10.40 and 6210.40.10; Exxon Corp. v. United States; HRLs 089385 and 951756; T.D. 91-78 - United States International Trade Commision Rulings

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HQ 953797

August 10, 1993

CLA-2 CO:R:C:T 953797 NLP

CATEGORY: CLASSIFICATION

TARIFF NO.: 6201.93.3520

Regional Commissioner
U.S. Customs Service
5850 San Felipe Street- Suite 500
Houston, TX 77057-3012

RE: Protest and Request for further review no. 5301-90-000042; boys' woven nylon jackets; water-resistance; headings 5603 and 5903; Legal Note 2(a)(1) to Chapter 59; Additional U.S. Note 2 to Chapter 62; Explanatory Notes to Chapter 62; subheadings 6210.10.40 and 6210.40.10; Exxon Corp. v. United States; HRLs 089385 and 951756; T.D. 91-78

Dear Sir:

This is a decision on application for further review of a protest timely filed by Givens and Kelly, on behalf of Weiner's Stores, Inc., against your decision concerning the classification of boy's jackets under the Harmonized Tariff Schedule of the United States (HTSUS).

FACTS:

The merchandise at issue is a boy's woven 100% nylon twill jacket, reference style numbers 3009, 5009 and 7009. The jackets have a 100% nylon taffeta lining and 100% polyester filler. The jackets have an application of rubber or plastics material on the inner surface of their outer shells.

Upon liquidation, the jackets were classified in subheading 6201.93.3520, HTSUS, which provides for "[m]en's or boys' overcoats, carcoats, capes, cloaks, anoraks (including ski- jackets)...: [a]noraks (including ski-jackets), windbreakers and similar articles (including padded, sleeveless jackets): [o]f man-made fibers: [o]ther: [o]ther: [o]ther: [o]ther: [b]oys." The rate of duty is 29.5% ad valorem and the applicable textile category code is 634.

The protestant states that the jackets are classifiable in subheading 6201.93.3000, HTSUS, which provides for "[m]en's or boys' overcoats, carcoats, capes, cloaks, anoraks (including ski- jackets)...: [a]noraks (including ski-jackets), windbreakers and similar articles (including padded, sleeveless jackets): [o]f man-made fibers: [o]ther: [o]ther: [o]ther: [w]ater resistant." The rate of duty is 7.6% ad valorem and the applicable textile category code is 634. In the alternative, the protestant contends that the jackets are classifiable in subheading 6210.40.10, HTSUS, which provides for "[g]arments, made up of fabrics of heading 5602, 5603, 5903, 5906 or 5907: [o]ther men's or boys' garments: [o]f man-made fibers" or in subheading 6210.10.40, HTSUS, which provides for "[g]arments, made up of fabrics of heading 5602, 5603, 5903, 5906 or 5907: [o]f fabrics of heading 5602 or 5603: [o]ther."

ISSUE:

Are the boys' nylon jackets classifiable as water resistant garments under subheading 6201.93.3000, HTSUS?

LAW AND ANALYSIS:

The classification of goods under the HTSUS is governed by the General Rules of Interpretation (GRI's), taken in order. GRI 1 provides that classification shall be determined according to the terms of the headings and any relative section or chapter notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRI's may be applied, taken in order.

Heading 6201, HTSUS, provides for, inter alia, men's or boys' anoraks, including ski-jackets. The subject jackets are made from nylon and are similar to ski-jackets, accordingly, they are classifiable in this heading. Within this heading there is a subheading provision, 6201.93.3000, HTSUS, for water resistant garments of man-made fibers. The term "water resistant" is defined by Additional U.S. Note 2 to Chapter 62, HTSUS, as follows:

For the purposes of subheadings...6201.93.30..., the term "water resistant" means that garments classifiable in those subheadings must have a water resistance (see ASTM designations D-3600-81 and D 3781-79) such that, under a head pressure of 600 millimeters, not more than 1.0 gram of water penetrates after two minutes when tested in accordance with AATCC Test Method 35-1985. This water resistance must be the result of a rubber or plastics application to the outer shell, lining or inner lining.

In the instant case, a representative sample of the jackets was submitted to the Customs laboratory in Houston for testing. The laboratory report states that the tested jacket, although having a plastics application, did not meet the requirements of Additional U.S. Note 2 to Chapter 62, HTSUS. Absent a conclusive showing that the method for determining water resistance used by Customs is in error, or that our results are erroneous, there is a presumption that the results obtained by Customs are correct. See, Exxon Corp. v. United States, 462 F. Supp. 378, 81 Cust. Ct. 87, C.D. 4772 (October 16, 1978). In this instance, Customs has followed the testing standards set forth in the HTSUS; there is no substantive evidence that has been presented to this office which establishes that either the methods used by Customs, or the results obtained, were erroneous. Absent this evidence, Customs' results stand and the fabric at issue is determined not to be water resistant for the purposes of classification in subheading 6201.93.3000, HTSUS. See, Headquarters Ruling Letter (HRL) 951756, dated June 15, 1993.

Furthermore, it is our position that the jackets are not classifiable in either of the alternative subheadings put forward by the protestant. Heading 6210, HTSUS, provides for "[g]arments, made up of fabrics of heading 5602, 5603, 5903, 5906 or 5907." Heading 5903, HTSUS, provides for "[t]extile fabrics impregnated, coated, covered or laminated with plastics..." The fabric of the jackets in question has been coated with plastics. However, the scope of heading 5903, HTSUS, is restricted by Legal Note 2(a)(1) to Chapter 59, HTSUS, which states the following:

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;

Therefore, for a fabric to be considered coated for tariff purposes, the coating must be visible to the naked eye. In this instance, the coating has not visually altered the surface character of the fabric. Thus, the jackets are not considered to be garments made up of fabric of heading 5903, HTSUS, and are not classifiable in subheading 6210.40.10, HTSUS. See, HRL 089385, dated September 11, 1991.

Heading 5603, HTSUS, provides for "[n]onwovens, whether or not impregnated, coated, covered or laminated." The garments at issue here have an outer shell of nylon material and a nonwoven filler. It is Custom's position that a garment is normally formed or created by its outer shell. While linings, interlinings and nonwoven insulating fabrics do contribute substantially to the characteristics of a garment, they do not form or create a garment. Accordingly, it is the outer shell of the garment which usually creates its identity and, therefore, imparts the essential character to that article. See, T.D. 91- 78, 25 Cust. Bull. 1, 4 (1991). Therefore, in the instant case, it is the outer nylon shell that represents the essential character of the jacket. Thus, the jacket is not considered to be a garment made up of fabric of heading 5603, HTSUS, and it is not classifiable in subheading 6210.10.40, HTSUS.

HOLDING:

The boys' jackets are classifiable in subheading 6201.93.3520, HTSUS, which provides for "[m]en's or boys' overcoats, carcoats, capes, cloaks, anoraks (including ski- jackets)...: [a]noraks (including ski-jackets), windbreakers and similar articles (including padded, sleeveless jackets): [o]f man-made fibers: [o]ther: [o]ther: [o]ther: [o]ther: [b]oys." The rate of duty is 29.5% ad valorem and the applicable textile category code is 634.

The protest is denied in full. A copy of this decision should be attached to the Customs Form 19 and provided to the protestant as part of the notice of action on the protest.

Sincerely,

John Durant, Director

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