HQ 084568: Request for Further Review of Protest 1001-5-008492, Dated July 27, 1985, Concerning Reversible Jackets

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 084568

                       MARCH 16, 1990


CLA-2 CO:R:C:G  084568  PR

CATEGORY:  Classification

TARIFF NO.:  383.90, TSUS

Area Director of Customs
6 World Trade Center
New York, New York 10048

RE:  Request for Further Review of Protest 1001-5-008492,
     Dated July 27, 1985, Concerning Reversible Jackets

Dear Sir:

     This ruling is on the protest that was filed against
your decision in the liquidation on April 5, 1985, of Entry
No. 84-862241, dated August 23, 1984.  It concerns the
classification of certain jackets produced in Korea.

FACTS:

     The merchandise in question is described as girls'
reversible jackets.  On three separate occasions Customs
contacted the importer's attorney and requested a sample.
None was submitted.  According to the importer and to Customs
officials, one side of the jacket was coated with plastics
material.

ISSUE:

     The importer contends that the plastics coating is
nontransparent and, therefore, the garments should be
classified under the provision for plastics wearing apparel,
in item 772.30, Tariff Schedules of the United States
(TSUS).  However, Customs classified the garments under the
provision for other girls' coats, not ornamented and not
knit, of man-made fibers, in item 383.90, TSUS, because the
classifying import specialist, after viewing the merchandise,
determined that the coating was not nontransparent.

LAW AND ANALYSIS:

     The importer has taken issue with Customs' previously
determined criteria for nontransparency.  However, the
transparency of a plastics coating is primarily a factual one

that cannot be resolved at the Headquarters level without a
sample.  This is true regardless of whether the criteria
advanced by the importer, or that followed for years by the
Customs Service, is used.

     Normally, the failure of the importer to furnish a
sample, where one is necessary for the determination of a
protest, will require Customs to deny the protest.  However,
under the instant circumstances, another factor also
necessitates the denial of this protest.

     The importer's submission is based entirely on the
application of Headnote 5, Schedule 3, TSUS, which provided
that in the classification of an article wholly or in part of
a fabric which is coated or filled with nontransparent
plastics, the fabric shall be regarded as being wholly of
plastics where the nontransparent plastics forms either the
outer surface of the article or the only exposed surface of
the fabric.  The note does not state that the article will
automatically be classified as a plastics article.  Under the
TSUS, the classification of merchandise was primarily based
on the component material of chief value of an article.
Headnote 5 is directed towards that determination.

     In this regard, it is not stated whether the instant
garments have one shell which is reversible or two outer
shells.  If the jackets only have one reversible shell, then
Headnote 5 is not applicable because the plastics coating
does not form either the outer surface of the article (there
are, in fact, two outer surfaces in that circumstance) or the
only exposed surface of the fabric.

     If the reversible garment has two outer shells, then
Headnote 5 is applicable only to the outer shell with the
plastics coating.  The determination of the component
material of chief value must still be made. In this regard,
we are unaware of any allegation by the importer that the
costs of the plastics coated shell exceed the costs of the
textile materials, and no cost figures were submitted.

HOLDING:

     In view of the foregoing, the protest should be denied
and a copy of this ruling should be attached to the Form 19,
Notice of Action, furnished to the protestant.

                              Sincerely,

                              // John Elkins //

                          for
                              John Durant, Director
                              Commercial Rulings Division