HQ 085420: Classification of a "Freezy Freakies boys' jacket"

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 085420

                         March 23, 1990




CLA-2  CO:R:C:G   085420  CC

CATEGORY:  Classification

TARIFF NO.:  6201.93.3000, 6201.93.3520

Mr. Duncan A. Nixon
Sharretts, Paley, Carter & Blauvelt, P.C.
67 Broad Street
New York, N.Y. 10004

RE:  Classification of a "Freezy Freakies boys' jacket"

Dear Mr. Nixon:

     This letter is in response to your inquiry of August 23,
1989, on behalf of David Peyser Sportswear, Inc., requesting
tariff classification under the Harmonized Tariff Schedule of the
United States Annotated (HTSUSA) of a "Freezy Freakies boys'
jacket."

FACTS:

     The sample at issue, designated as Style 4FF1, is a hip-
length jacket with an elastic waistband, rib knit cuffs, a full
front opening with a zipper, slant pockets at the waist with
zippers, and a woven nylon lining quilted to a nonwoven polyester
insulation.  The outer shell is constructed of a woven nylon
fabric, which has a plastics material applied on the underside,
that you maintain makes the garment water resistant.  On each
sleeve there is an insert of polyurethane coating on knit textile
fabric, which you call the "Freezy Freakies" fabric.  The
coating, which appears white, is also on knit fabric on the front
storm flap, the pocket edging, and the chest and sleeves as
piping between seams.  When exposed to cold temperatures, the
exterior plastics coating on the fabric changes color.

ISSUE:

     Whether the sample garment is classifiable in Heading 6113,
6201, or 6210, HTSUSA?

LAW AND ANALYSIS:

     Classification of merchandise under the HTSUSA is in
accordance with 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.

     The "Freezy Freakies" coating covers the knitted fabric
portion of the boys' jacket at issue.  Heading 6113, HTSUSA,
provides for garments made up of knitted or crocheted fabrics of
Headings 5903, 5906, or 5907.  Note 2 to Chapter 59 states that
Heading 5903 applies to the following:

     (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."  The plastics material added
to the fabric must be visibly distinguishable from that fabric
without the use of magnification.

     Upon examination, the plastics material is visibly
distinguishable from the knit fabric.  Having determined that the
knit fabric is coated with plastics, we must decide whether the
jacket is made up of this material for purposes of Heading 6113.

     We note that an Explanatory Note to Chapter 61 states the
following:

          The classification of goods in this Chapter is not
     affected by the presence of parts or accessories of, for
     example, woven fabrics, furskin, feathers, leather, plastics
     or metal.  Where, however, the presence of such materials
     constitutes more than mere trimming the articles are
     classified in accordance with the relative Chapter Notes
     (particularly Note 4 to Chapter 43 and Note 2(b) to Chapter
     67, relating to the presence of furskin and feathers,
     respectively), or failing that, according to the General
     Interpretive Rules.

     In HRL 081134, dated April 27, 1989, the term "made up"
[of] was interpreted, for purposes of Heading 6210, HTSUSA, "to
cover any assembled garment which includes a material
classifiable in one of the enumerated headings [5602, 5603,
5903, 5906, 5907], and which imparts a significant
characteristic to that garment."  This definition of "made up"
[of] is applicable to Heading 6113, HTSUSA.

     We would agree that the knitted fabric coated with the
"Freezy Freakies" plastic imparts a significant characteristic to
the jacket at issue.  Those portions of the jacket provide a
decorative effect by changing color in cold temperatures.  In
addition, the coated knit fabric covers enough of the jacket to
be considered more than mere trimming.  Therefore, the jacket at
issue is classifiable in Heading 6113.

     The jacket also contains woven fabric.  Applying Note
2(a)(1) of Chapter 59 to the woven nylon fabric of the jacket,
using normally corrected vision in a well-lighted room, we do not
believe that the plastics material is visible to the naked eye.
Thus, the jacket at issue is not classifiable in Heading 6210.
It would be classifiable in Heading 6201, HTSUSA, which provides
for anoraks, windbreakers, and similar articles.

     Note 7 to Chapter 61 provides that garments which are, prima
facie, classifiable both in Heading 6113 and in other headings of
this chapter are to be classified in Heading 6113.  Since the
competing heading, 6201, is in a different chapter, this chapter
note is not applicable.  After having applied GRI 1, we are left
with competing headings, 6113 and 6201, for classification of the
jacket at issue.  Therefore, we must apply the remaining GRI's.

     GRI 3(b) provides that mixtures, composite goods consisting
of different materials or made up of different components, and
goods put up in sets for retail sale, shall be classified as if
they consisted of the material or component which gives them
their essential character.

     In HRL 084118, dated April 13, 1989, copy attached, we
stated that for upper or lower body garments, if one component
exceeds 60 percent of the visible surface area, that component,
in essence, imparts the essential character to the garment and
will determine the classification of it.  The woven fabric
clearly exceeds 60 percent of the visible surface area of the
jacket at issue.  Therefore, the sample jacket is classified in
Heading 6201, HTSUSA.

HOLDING:

     If the jacket at issue meets the test for water resistance
in Additional U.S. Note 2 to Chapter 62, HTSUSA, it is classified
under subheading 6201.93.3000, HTSUSA, which provides for
articles of apparel and clothing accessories, not knitted or
crocheted, men's or boys' anoraks (including ski-jackets),
windbreakers, and similar articles, of man-made fibers, other,
other, other, water resistant.  The rate of duty would be 7.6
percent ad valorem and the textile category would be 634.

     If the jacket at issue does not meet the test for water
resistance in Additional U.S. Note 2 to Chapter 62, HTSUSA, it is
classified under subheading 6201.93.3520, HTSUSA, which provides
for articles of apparel and clothing accessories, not knitted or
crocheted, men's or boys' anoraks (including ski-jackets),
windbreakers, and similar articles, of man-made fibers, other,
other, other, other, boys'.  The rate of duty would be 29.5
percent ad valorem and the textile category would be 634.

     Your sample is being returned under separate cover.

     Due to the changeable nature of the statistical annotation
(the ninth and tenth digits of the classification) and the
restraint (quota/visa) categories applicable to textile
merchandise, you should contact your local Customs office prior
to importation of this merchandise to determine the current
status of any import restraints or requirements.

     The designated textile and apparel category may be
subdivided into parts.  If so, visa and quota requirements
applicable to the subject merchandise may be affected.  Since
part categories are the result of international bilateral
agreements which are subject to frequent renegotiations and
changes, to obtain the most current information available, we
suggest that you check, close to the time of shipment, the Status
Report On Current Import Quotas (Restraint Levels), an internal
issuance of the U.S. Customs Service, which is available for
inspection at your local Customs office.


                              Sincerely,




                              John Durant, Director
                              Commercial Rulings Division


Enclosure