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HQ 960189




November 3, 1997

CLA-2 RR:TC:TE 960189 jb

CATEGORY: CLASSIFICATION

TARIFF NO.: 6210.20.9020

Port Director
U.S. Customs Service
200 Saint Paul Pl. #2800
Baltimore, MD. 21202-2004

RE: Decision on Application for Further Review of Protest No. 1303-96-100438; classification of men's raincoats; heading 6210

Dear Sir:

This is a decision on application for further review of a protest timely filed by Kuehne & Nagel, Inc., on behalf of London Fog Industries, Inc., on November 6, 1996, against your decision regarding the classification of certain men's raincoats. All entries were liquidated between August and November, 1996. Samples were submitted to this office for examination.

FACTS:

The merchandise that is the subject of the present protest consists of three styles of men's raincoats, referenced styles Bozley, Midland and Manning, which were included in New York Preclassification rulings (PC) 897152, dated May 20, 1994, A81052, dated April 16, 1996, 808307, dated April 19, 1995, and 802773, dated October 28, 1994. The merchandise was classified by Customs in heading 6201, Harmonized Tariff Schedule of the United States (HTSUS). The Protestant disagrees with this classification determination and advocates classification of this merchandise in heading 6210, HTSUS.

The subject merchandise consists of an outer shell made of 60 percent cotton/ 40 percent polyester fabric which is coated on its underside with polyurethane, and is described as follows:

Bozley
The garment extends below the knee and features a zip-out liner, long sleeves with adjustable belted straps at the cuffs, a button-off leather top collar, a hemmed bottom, a full front opening with five button closure and an internal single button closure, slash pockets on each side, detachable self-fabric belt held to the garment by belt loops, free hanging yoke at the back of the garment, and an inverted back pleat;

Midland
The garment extends below the knee and features a zip-out liner, long sleeves with adjustable belted straps at the cuffs, a button-off leather top collar, a hemmed bottom, a full front opening with four button closure and an internal single button closure, buttoned shoulder epaulets, slash pockets on each side, detachable self-fabric belt held to the garment by belt loops, free hanging yoke at the back of the garment, and an inverted back pleat secured by a buttoned tab;

Manning

The garment extends below the knee and features a zip-out liner, long sleeves with adjustable belted straps at the cuffs, a button-off leather top collar, a hemmed bottom, a full front opening with four button closure and an internal single button closure, slash pockets on each side, detachable self-fabric belt held to the garment by belt loops, free hanging yoke at the back of the garment, and an inverted back pleat secured by a buttoned tab.

ISSUE:

Whether the subject merchandise is properly classified in heading 6201, HTSUS, which provides for, among other things, men's overcoats, or heading 6210, HTSUS, which provides for, among other things, garments made up of fabrics of heading 5602, 5603, 5903, 5906 or 5907?

LAW AND
ANALYSIS:

Classification of merchandise under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) is in accordance with the General Rules of Interpretation (GRI). GRI 1 provides that classification shall be determined according to the rules of the headings and any relative section or chapter notes, taken in order. Merchandise that cannot be classified in accordance with GRI 1 is to be classified in accordance with subsequent GRI.

The two plausible headings for the subject merchandise are heading 6201, HTSUS, which provides for, among other things, men's overcoats, and heading 6210, HTSUS, which provides for, among other things, garments made up of fabrics of heading 5602, 5603, 5903, 5906 or 5907, HTSUS. Note 5 to chapter 62, HTSUSA, states:

Garments which are, prima facie, classifiable both in heading 6210 and in other headings of this chapter, excluding heading 6209, are to be classified in heading 6210.

Heading 5903, HTSUSA, provides for textile fabrics impregnated, coated, covered or laminated with plastics. Note 2(a)(1), Chapter 59, HTSUSA states, in pertinent part:

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)...

(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;

It follows that previous to making a determination, Customs must initially examine coated fabrics with the naked eye alone. Only when such an examination suggests the presence of coating, is it within Customs' discretion to examine the fabric under magnification (See HRL 082644, dated March 2, 1990).

An examination of the submitted merchandise evidences that the shell fabric of each style has been coated on its underside with what is stated to be polyurethane. The fact that these garments' outer shell fabrics have been coated on the inner side does not preclude classification of this merchandise from classification in heading 6210, HTSUS. They are however, precluded from the pertinent subheadings specifically requiring that the coating completely obscure the underlying fabric. Accordingly, as the coating on the inner side of the outershell is distinguishable from that fabric without the use of magnification, the fabric meets the terms of Note 2(a)(1) to Chapter 59, HTSUS.

The proper classification for this merchandise is in heading 6210, HTSUS.

HOLDING:

The subject merchandise, referenced styles Bozley, Midland and Manning, are classified in heading 6210.20.9020, HTSUSA, which provides for garments made up of fabrics of heading 5602, 5603, 5903, 5906 or 5907: other garments, of the type described in subheadings 6201.11 to 6201.19: other: other: other. The applicable rate of duty is 6.5 percent ad valorem and the quota category is 334.

The protest should be granted in full and a copy of this ruling should be appended to the CF 19 Notice of Action to satisfy the notice requirement of section 174.30(a) Customs Regulations.

In accordance with Section 3(A)(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, this decision should be mailed by your office to the Protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with the decision must be accomplished prior to mailing of the decision. Sixty days from the date of the decision the Office of Regulations and Rulings will take steps to make the decision available to Customs personnel via the Customs Rulings Module in ACS and the public via the Diskette Subscription Service, Freedom of Information Act and other public access channels.

Sincerely,

John Durant, Director
Commercial Rulings Division


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