HQ 082994: Classification of women's raincoats

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                                        HQ 082994

                                    November 21, 1988



             CLA-2 CO:R:C:G   082994 PR

             CATEGORY:  Classification

             TARIFF NO:  6202.13.4005

             Ms. Mary Ann Ost
             H. Z. Bernstein Co., Inc.
             One World Trade Center, suite 1973
             New York, New York 10048

             RE:  Classification of women's raincoats

             Dear Ms. Ost:

                 This is in reply to your letter of September 1, 1988, on
             behalf of Saxton Hall Ltd., concerning the tariff
             classification and textile and apparel restraint category
             applicable to certain women's raincoats.

             FACTS:

                 Submitted with your request was one sample garment.  The
             sample, style 1704P, manufactured in Korea, is a three-quarter
             length coat with a light-weight woven man-made fiber lining
             and a much heavier woven outer shell.  The outer shell is
             stated to be sixty-five percent polyester and thirty-five
             percent cotton.  It has a five-button full front opening with
             plackets, long sleeves with simulated adjustment straps near
             their openings, a pointed collar, epaulets, and hip area slash
             inserted pockets with simulated pocket flaps.  The inner
             surface of the outer shell material appears to have a silver-
             colored plastics application that is discernible only under
             magnification.  The garment is stated to be "waterproof."

             ISSUE:

                 The issue presented is whether there is sufficient
             plastics applied to the outer shell fabric for it to be
             considered "impregnated, coated, or covered" under the
             Harmonized Tariff Schedule of the United States Annotated
             (HTSUSA).  
















                                          - 2 -


             LAW AND ANALYSIS:

                 The subject garment is specifically described in
             Subheading  6202.13.4005, which provides for women's
             raincoats, carcoats, and similar garments, of man-made fibers.
             However, Note 5 to Chapter 62, HTSUSA, where that subheading
             is found, provides, in effect, that garments which are, prima
             facie, classifiable in Headings 6210 and 6202, will be
             classified in Heading 6210.

                 Heading 6210, HTSUSA, provides for garments made up of
             fabrics of various headings, including Heading 5903.  Heading
             5903 provides for textile fabrics impregnated, coated,
             covered, or laminated with plastics (except tire cord which is
             provided for in Heading 5902).

                 Note 2 of Chapter 59, HTSUSA, provides, 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), 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.

                 It is our view that the wording of Note 2(a)(1) ("visible
             to 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, or covered."

                 Therefore, following the strict wording of Note 2(a)(1),
             for a fabric to be considered "impregnated, coated, or
             covered" within that requirement, the plastics material added
             to the fabric must be visibly distinguishable from that fabric
             without the use of magnification.

                 Under magnification, it is obvious that, as noted above,
             the outer shell fabric has a plastics application on its inner
             surface.  However, we are precluded from using magnification
             to determine whether a fabric is "impregnated, coated, or
             covered" with plastics under the HTSUSA.  Note 2(a) requires
             that the plastics must be "seen with the naked eye" otherwise
             than by a change in color.  











                                          - 3 -


                 Applying this statutory test to the submitted samples,
             using normally corrected vision in a well lighted room, the
             submitted sample does not meet the criterion of having the
             plastics application visible to the naked eye.  Accordingly,
             the fabric comprising the outer shell would not be
             classifiable under Heading 5903 and the garment does not,
             therefore, qualify for classification under Heading 6210.
             Since Heading 6210 is not in issue, Note 5 to Chapter 62 has
             no application and the garment is classifiable under the
             subheading which specifically describes it.

             HOLDING:

                 Coats, as represented by the submitted sample, are
             classifiable under Subheading 6202.13.4005, with duty at the
             rate of 29.5 percent ad valorem.  The Textile and Apparel
             Category applicable to this merchandise is 635.  This
             classification represents the present position of the Customs
             Service under the HTSUSA.  If there are changes before the
             effective date of January 1, 1989, this advice may not
             continue to be applicable.

                 Under the Tariff Schedules of the United States Annotated
             (TSUSA), the sample coat is classifiable under the provision
             for women's coats designed for rainwear, almost wholly of
             fabrics that have been coated or filled with rubber or
             plastics, in item 376.5612, with duty at the rate of 7.6
             percent ad valorem and with a textile and apparel category of
             635.  Note that the requirements under the TSUSA for a
             "coating or filling" are different than the requirements for
             an "impregnation, coating, or covering" under the HTSUSA.

                                           Sincerely,




                                           John Durant, Director
                                           Commercial Rulings Division