HQ 082993: 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 082993

                                    November 25,1988

             CLA-2 CO:R:C:G   082993 PR

             CATEGORY:  Classification

             TARIFF NO.:  Item No. 6202.13.4005 TSUS

             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 14, 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 and
             five swatches of fabric from which the outer shell of the
             garments will be made.

                 The sample garment, style 8153, manufactured in Korea, is
             a knee-length coat with a light-weight woven plaid 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 self-fabric belt, a detachable hood, a rear
             yoke that attaches along its bottom edge to the body of the
             garment by means of two buttons, and two inserted hip area
             pockets.  It also has a five-button full front opening with
             plackets and two free-hanging front pointed yokes that attach
             to the body of the garment by means of single buttons.

                 Each of the sample fabrics has an application of plastics
             material on its inner surface.

             ISSUE:

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













                                          - 2 -


             LAW AND ANALYSIS:

                 The subject garments are specifically described in
             Subheading  6202.13.4005, as women's raincoats 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,
             each of the swatches 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, none
             of the submitted samples meet the criterion of having the
             plastics application visible to the naked eye.  Accordingly,
             the fabrics comprising the outer shell would not be
             classifiable under Heading 5903 and garments made from those
             fabrics do 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 garments are
             classifiable under the subheading which specifically describes
             them.

             HOLDING:

                 Coats, as represented by the submitted sample, made of
             fabrics which correspond to the submitted swatches, 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 dated of January 1, 1989, this advice may not
             continue to be applicable.

                 Under the Tariff Schedules of the United States Annotated
             (TSUSA), the sample, made from any of the submitted swatches,
             would be 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