HQ 950905: Application for further review of Protest 1001-90-006167. Boy's and girls' windbreakers.

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 950905

                           May 5, 1992

CLA-2 CO:R:C:T  950905 HP

CATEGORY:  Classification

TARIFF NO.:   6201.93.3520

Mr. John J. Martuge
Area Director
U.S. Customs Service
John F. Kennedy International Airport
Building 178
Jamaica, NY 11430

RE:  Application for further review of Protest 1001-90-006167. 
Boy's and girls' windbreakers.

Dear Mr. Martuge:

     This is in reply to Memorandum PRO-2-05-O:C:R JAD from the
Head, Protest and Control Section, New York Region, attaching for
our review and advice photocopies of relevant documents
pertaining to Protest 1001-90-006167 and application for further
review thereof.

FACTS:

     This application before us arises from the following
scenario:

     On December 4, 1989, Entry No. G 730015358-0, importer
     entered boys' windbreakers, Style 08911, under subheading
     6210.40.10, HTSUSA, and paid duties at the rate of 7.6% ad
     valorem.

     On December 5, 1989, Entry No. G 730015388-7, importer
     entered girls' windbreakers, Style 05900, under subheading
     6202.93.45, HTSUSA, and paid duties at the rate of 7.6% ad
     valorem.

     On June 1, 1990, both Entries liquidated.  At this time,
     importer received Entry Summaries (7501s), reclassifying the
     boys' jackets under subheading 6201.93.35, HTSUSA, and the
     girls' jackets under subheading 6202.93.45, HTSUSA.  This
     required Rate Advances to 29.5% ad valorem.

     On July 16, 1990, counsel received a commercial laboratory
     report finding that the fabric of which the jackets were
     constructed was considered water-resistant under the HTSUSA.

     On July 18, 1990, importer's counsel Coudert Brothers filed
     Protest and AFR 1001-0-006166 ({GIRLS}) on the
     reclassification of the girls' jackets, and Protest and AFR
     1001-90-006167 ({BOYS}) on the reclassification of the boys'
     jackets.  A copy of the aforementioned laboratory report was
     attached to each Protest and AFR.

     On November 14, 1991, the Chief, Commercial Operations
     Branch, J.F.K. Airport Area, notified counsel that AFR
     {GIRLS} failed to meet the further review criteria of
     section 174.24, Customs Regulations.

     On November 14, 1991, the Chief, Commercial Operations
     Branch, J.F.K. Airport Area, approved the AFR for Protest
     {BOYS}.

     On December 5, 1991, the AFR for Protest {BOYS} was
     forwarded to this office.  A sample of Style 05900 from the
     Protest {GIRLS}, not Protest {BOYS}, was included.  Counsel
     stated that the boys' and girls' jackets were produced from
     identical fabric.  Counsel states that a sample of Style
     08911 (the style at issue) is unavailable.

     On December 27, 1991, the Chief, Commercial Operations
     Branch, J.F.K. Airport Area, denied the Protest and AFR
     {GIRLS}.  We therefore have no jurisdiction to review this
     decision.  See section 174.31, Customs Regulations.

ISSUE:

     Whether the boys' jacket is considered either visibly coated
or water-resistant under the HTSUSA?

LAW AND ANALYSIS:

     Heading 6210, HTSUSA, provides for garments made up of,
inter alia, fabrics of heading 5903, HTSUSA.  Heading 5903,
HTSUSA, provides for classification of textile fabrics
impregnated, coated, covered or laminated with plastics, other
than tire cord covered by Heading 5902.  Note 2 of Chapter 59,
HTSUSA, provides, in pertinent part:

          Heading No. 59.03 applies to:

               (a) Textile fabrics, impregnated,
          coated, covered or laminated with plastics,
          ... 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 colour; * * *

     As we stated above, no sample exists for the boys' jacket. 
At the time of liquidation, the National Import Specialist,
considered by Customs and the Courts as the expert for this
commodity, state that the coating on the jacket results in
nothing more than a change in color.  Classification in heading
6210, HTSUSA, would therefore be incorrect.

     Subheading 6201.91, HTSUSA, provides for, inter alia, men's
or boys' windbreakers and similar articles.  Within this
provision exists a breakout for water resistant garments. 
Additional U.S. Note 2 to Chapter 62, HTSUSA, defines the term
"water resistant" as meaning

          garments classifiable [as such] must have a
          water resistance ... such that, under a head
          pressure of 600 millimeters, not more than
          1.0 gram of water penetrates after two
          minutes ....

     On July 16, 1990, counsel received a commercial laboratory
report finding that the fabric of which the jackets were
constructed was considered water-resistant under the HTSUSA.  The
NIS state, however, that the shell fabric with the plastic
coating did not extend to the front zipper, leaving a gap of
almost three inches where there was no coated material.  In HRL
087317 of February 7, 1991, we stated that "[d]ue to the
extensive area of the garment not lined with the water resistant
fabric, we cannot consider the ~garment" to be water resistant."

     The appraised classification was therefore correct, in that
the garment is not considered water resistant.  At the
statistical level, however, the garment was placed in a breakout
for men, not boys.  No change in duty or textile category is
required.

HOLDING:

     As a result of the foregoing, the instant merchandise is
classified under subheading 6201.93.3520, HTSUSA, textile
category 634, as men's or boys' overcoats, carcoats, capes,
cloaks, anoraks (including ski-jackets), windbreakers and similar
articles (including padded, sleeveless jackets), other than those
of heading 6203, anoraks (including ski-jackets), windbreakers
and similar articles (including padded, sleeveless jackets), of
man-made fibers, other, other, other, other, boys'.  The
applicable rate of duty is 29.5 percent ad valorem.

     You are instructed to Deny the Protest in Full.  A copy of
this decision should be attached to the Form 19 Notice of Action.

                           Sincerely,



                      John Durant, Director
                   Commercial Rulings Division