HQ 950116

December 7, 1993

CLA-2 CO:R:C:T 950116 HP

CATEGORY: Classification

TARIFF NO.: 6201.93.3510; 6201.93.3520; 6210.40.1020

Ms. Patricia McCauley

District Director

U.S. Customs Service

1717 East Loop, Room 401

Houston, TX 77029

RE: Application for Further Review of Multiple Protests. Quilted

anoraks of plastics coated fabrics.

Dear Ms. McCauley:

This is in reply to your Memorandum PRO-2-H:C of August 6,

1991, transmitting documentation for sixteen (16) Protests and

Applications for Further Review, as follows. Please be aware

that this response is issued to your office in conjunction with

HRL 952958 of this date.

TABLE IN ORIGINAL

LISTING

PROTEST NUMBERS

FACTS:

The above-listed Protests were filed by Givens & Kelly, on

behalf of their client, on the classification under the

Harmonized Tariff Schedule of the United States Annotated

(HTSUSA) of ski jackets. The liquidations have also been

protested by the importer\'s surety, which claimed that since the

entries were not liquidated within one year from the date of

entry, the resulting extensions were contrary to the provisions

of section 504, Tariff Act of 1930, as amended. Complying with

the surety\'s request, action on these Protests has been suspended

until the importer\'s Protests have been ruled upon. If

necessary, the surety\'s protests will be answered in a separate

document.

The protests involve a number of styles of men\'s and boys\'

jackets entered under subheading 6201.93.3000, HTSUSA, as water

resistant woven anoraks and similar garments. After entry, many

samples were analyzed by the Customs Laboratory and tested in

accordance with the water resistance requirements of Additional

U.S. Note 2 to Chapter 62, HTSUSA. When the garments at issue

failed the aforementioned test (see, e.g., Laboratory Report

#5-90-10272-001 of January 26, 1990), the importer requested

classification under heading 6210, HTSUSA, as garments made up

of, inter alia, coated fabrics. This request was denied, and

counsel entered these Protests.

Counsel has submitted a chart covering the style numbers and

their applicable Protest numbers. We duplicate the consequential

information on the following page. The first numeral in the

Style designation indicates whether the style is men\'s (3XXX),

boys\' (4XXX), or men\'s \"Big & Tall\" (5XXX). Styles bearing the

suffix MS or BU are made up of the same fabric as those of the

same number without any suffix. Style 4729 is made up of the

same fabric of Style 3729. Style 5X30 is made up of the same

fabric of Style 5X29. Style 3727 is made up of the same fabric

of Style 4727.

Style Numbers Sorted By Protest Number:

Protest Number Style Number

5301-0-000143 P3661

P3721

P4701

5301-0-000204 P3703

P3705

5301-0-000243 P4709

P4725

P4727

P4727

P5729

5301-0-000406 P3705

P3709

P3725

P3727

P3727MS

P3729

P3733

P4703

P4703

P4721

P4727

P4729

P4729MS

5301-0-000577 P3727A

P4727

P4727BU

P4727MS

P4729BU

P5729

T3741

5301-1-000066 P3729

P4701

5301-1-100196 P3709

P3721

P4709

P5730

5301-1-100634 T3741

5301-9-000682 P3729MS

ISSUE:

Whether the garments at issue are water resistant; if not,

are they made up of fabrics coated with plastics, as such fabrics

are defined by the HTSUSA?

LAW AND ANALYSIS:

Water Resistant

Although the importer has requested classification of all

garments at issue as water resistant, no documentation countering

the aforementioned Customs Laboratory Reports has been submitted.

It is appropriate, therefore, to reject importers\'s first claimed

classification, and proceed to the alternative.

Garments Classifiable in Heading 6210, HTSUSA

Quilted Garments - Styles P3661 & P3721

The Subheading Explanatory Note to Chapter 62, HTSUSA,

excludes from classification in heading 6210 articles made from

quilted textile products in the piece of heading 5811, HTSUSA.

The Explanatory Notes (EN) to the HTSUSA constitute the official

interpretation of the tariff at the international level. While

not legally binding, they do represent the considered views of

classification experts of the Harmonized System Committee. It

has therefore been the practice of the Customs Service to follow,

whenever possible, the terms of the Explanatory Notes when

interpreting the HTSUSA. Counsel has argued that the above-cited

styles are not within the Explanatory Note\'s exclusion:

\"\[r\]ather, they were made up of non-quilted piece goods, similar

to the other styles\.... The quilting\' did not occur until, and

as a part of, assembly.\" In HRL 087274 of September 17, 1990,

however, we held that notwithstanding the language of the

Explanatory Note, the principle of the Note requires extension of

the exclusion to all garments which are made up of quilted

fabrics, whenever such quilting takes place. Therefore,

irrespective of the above styles\' potential coating, HRL 087274

would require that they are not classified in heading 6210,

HTSUSA.

In its June 25, 1992, submission, counsel argued that HRL

087274 was decided incorrectly. Specifically, counsel noted

that:

{1} excluding garments constructed of heading

5811 \"quilted textile products in the piece\"

from classification in heading 6210 is

required not by the Subheading Explanatory

Note (which merely aids us in interpreting the

HTSUSA), but by legal Note 2(a)(6) to Chapter

59\. This Note states that irrespective of the

presence of a visible coating, textile

products of heading 5811 are excluded from

classification under heading 5903 as coated

fabrics. Since heading 6210 provides for,

inter alia, garments constructed of coated

fabrics of heading 5903, the exclusion from

heading 6210 of garments constructed of

fabrics excluded from heading 5903 is the only

logical result possible.

{2} the \"virtually identical garments\"

language in HRL 087274 is faulty, in that

Congress recognized, as evidenced by the

language of Note 2(a)(6) to Chapter 59, that

there are significant differences between non-

quilted coated fabrics and quilted coated

fabrics.

{a} The quilted look in ski jackets is

more a statement of style than a required

assembly process.

{b} Quilted textile products in the

piece are rarely used in garments, as

they are much harder to assemble and fit.

Quilting plain fabric during garment

assembly more economically provides the

\"quilted\" look.

{c} Quilted textile products in the

piece are made by piece goods

manufacturers. Garments quilted during

assembly are made by garment

manufacturers. Congress has a long

history, via higher tariffs and stricter

quotas, of protecting one domestic

industry over another.

We agree with counsel that HRL 087274 erred in holding that

the \"principle\" of the Explanatory Note outweighed its explicit

language. HRL 087274 has therefore been revoked in HRL 955466 of

this date. Accordingly, these two styles will be grouped with

the remaining fabrics below. To aid Customs field personnel in

distinguishing between \"jackets quilted during assembly\" and

\"jackets made from quilted-in-the-piece\' fabric\" (hereinafter

\"QIP fabric\"), we are incorporating the following descriptions.

As always, statements by the importer as to when quilting takes

place may be considered as evidence of final classification.

Jackets Quilted During Assembly

These jackets are assembled of two components, an interliner

and a shell, one or both of these having been quilted as they are

assembled. The interliner and the shell are then sewn together

in an inside-out fashion to create a bag that is completely

sealed, except for a six inch section of the sleeve seam that is

left unsewn. These inside-out components are then reversed by

pulling the bag through the whole in the sleeve wall. The jacket

assembly is completed when six inches of \"suture\" stitches close

the hole in the sleeve and create the jacket\'s only readily

visible seam. The exposed suture stitches confirm that the

jacket has been quilted in assembly. A second indication is the

near symmetrical quilting stitches in the different jacket parts

(e.g., fronts and backs) that are often situated to match up

carefully where the two parts are joined.

Jackets Made From \"Quilted-in-the-Piece\" Fabric

The components of these jackets are cut from QIP fabric

(heading 5811, HTSUSA). The two stitches that are used to

assemble these components are indicators that one or more

components are QIP. These stitches appear on inside seams and

are either not readily visible (the \"security\" stitch), or are

totally invisible (the \"overlock\" stitch) when viewing the seam

from the outside shell side.

Security Stitch

A security stitch is applied on the inside of the

jacket to pierce, in turn, the first component\'s

interliner, its shell, and then the second components

shell and interliner. The security stitch serves to join

the components of the jacket. The stitch is hardly

visible when viewing the resulting seam from the outside

shell side of the jacket.

Overlock Stitch

An overlock stitch is designed to prevent unraveling

and is placed along the cut edges of the four or more

fabrics that have been sewn in place by the above-

described security stitch. The overlock stitch, which is

added parallel to the security stitch, neatly wraps the

cut edges of the four fabrics and keeps those edges from

fraying. The overlock stitch is visible only when one

views the seam from the inside of the jacket.

Remaining Garments

Heading 6210, HTSUSA, provides for, inter alia, garments

made up of fabrics classifiable in 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; \* \* \*

The wording of Note 2(a)(1) (\"cannot be seen with 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, covered or laminated. The plastics material added to the

fabric must be visibly distinguishable from that fabric without

the use of magnification. Any change in the \"feel\" of the

material is not taken into account. In essence, the plastics

coating must alter the visual characteristic of the fabric in

order for the fabric to be considered coated with plastics.

Applying the statutory test to the submitted samples, using

normally corrected vision in a well lighted room, we have come to

the following conclusions. Garments whose fabrics styles are

considered coated are classifiable in subheading 6210.40.1020;

those of uncoated fabrics are appropriately placed in subheading

6201.93.3510, HTSUSA, if men\'s, or 6201.93.3520, HTSUSA, if

boys\'.

TABLE IN ORIGINAL

LISTING FINDINGS OF

VISIBLY COATED

HOLDING:

As a result of the foregoing, the instant merchandise is

classified as follows:

Styles P5729, P3721, P3661, P4727, P4727BU, P4727MS, P4721,

P3725, P3729MS, P3727, P3727A, P3727MS, P4725, P4729BU,

P4729MS, P5730

\... under subheading 6210.40.1020, HTSUSA, textile category

634, as garments, made up of fabrics of heading 5602, 5603,

5903, 5906 or 5907, other men\'s or boys\' garments, of

man-made fibers, other, anoraks (including ski-jackets),

windbreakers and similar articles. The applicable rate of

duty is 7.6 percent ad valorem.

Styles P4701, P3703, P3733, T3741, P3705, P3709, P4703, P4709

\... if men\'s, under subheading 6201.93.3510, 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, men\'s. The applicable rate of duty is

29.5 percent ad valorem.

\... if boys\', 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.

The Protests should be granted or denied as follows:

Protest Number Style \# . Results of Style #. . . . . Disposition

of Protest

5301-0-000143. P3661 . . Coated. . . . . . Denied in Part

. . P3721 . . Coated. . and Granted in

. . P4701 . . Uncoated. Part

5301-0-000204. P3703 . . Uncoated. . . . . Denied in Full

. . P3705 . . Uncoated.

5301-0-000243. P4709 . . Uncoated. . . . . Denied in Part

. . P4725 . . Coated. . and Granted in

. . P4727 . . Coated. . Part

. . P5729 . . Coated. .

5301-0-000406. P3705 . . Uncoated. . . . . Denied in Part

. . P3709 . . Uncoated. and Granted in

. . P3725 . . Coated. . Part

. . P3727 . . Coated. .

. . P3727MS . . . Coated. .

. . P3729 . . Coated. . . . . . Denied in Part

. . P3733 . . Uncoated. and Granted in

. . P4703 . . Uncoated. Part

. . P4721 . . Coated. .

. . P4727 . . Coated. .

. . P4729 . . Coated. .

. . P4729MS . . . Coated. .

5301-0-000577. P3727A. . . . Coated. . . . . . Denied in Part

. . P4727 . . Coated. . and Granted in

. . P4727BU . . . Coated. . Part

. . P4727MS . . . Coated. .

. . P4729BU . . . Coated. .

. . P5729 . . Coated. .

. . T3741 . . Uncoated.

5301-1-000066. P3729 . . Coated. . . . . . Denied in Part

. . P4701 . . Uncoated. and Granted in

Part

5301-1-100196. P3709 . . Uncoated. . . . . Denied in Part

. . P3721 . . Coated. . and Granted in

. . P4709 . . Uncoated. Part

. . P5730 . . Coated. .

5301-1-000634. T3741 . . Uncoated. . . . . Denied in Full

5301-9-000682. P3729MS . Coated. . . . . . . . Granted in Full

In accordance with Section 3A(11)(b) of Customs Directive

099 3550-065, dated August 4, 1993, Subject: Revised Protest

Directive, this decision should be mailed by your office to the

protestant no later than 60 days from the date of this letter.

Any reliquidation of the entry in accordance with the decision

must be accomplished prior to the mailing of the decision. Sixty

days from the date of the decision the Office of Regulations &

Rulings will take steps to make the decision available to Customs

personnel via the Customs Rulings Module in ACS, and to the

public via the Diskette Subscription Service, Lexis , Freedom of

Information Act, and other public access channels.

Sincerely,

John Durant, Director