Protest No. 1001 9-003687 of July 6, 1989, and request forfurther review filed by Coudert Brothers on behalf of XXXXXXXXX.,New York, New York. made up;garments;coated;visible;naked;5903

HQ 085829 January 16, 1990 CLA-2 CO:R:C:G 085829 HP CATEGORY: Classification TARIFF NO.: 6210.50.1010 Mr. John J. Martuge Area Director of Customs U.S. Customs Service John F. Kennedy International Airport Building 178 Jamaica, NY 11430 RE: Protest No. 1001 9-003687 of July 6, 1989, and request for further review filed by Coudert Brothers on behalf of XXXXXXXXX., New York, New York. made up;garments;coated;visible;naked;5903 Dear Mr. Martuge: Protest and request for further review were timely filed against your liquidation of entry number XXXXXXXXX covering shipments of girls' jackets. FACTS: The merchandise at issue consists of 3000 pieces of girls' anorak-like garments, Style 2419. The outer shell is composed of 600 millimeters of 100% polyurethane (PU), laminated to a 100% woven polyester backing. Panels (11/2" x 31/4") located on either side of the full front zipper, and the outer surfaces of the two side pockets (61/2" x 31/4"), are constructed of 100% knitted acrylic fabric. The knitted portion is of a contrasting color to the remaining outer shell, and imparts a substantial decorative effect. The lining of the jacket is 100% woven nylon, and the filling is 100% nonwoven polyester. The jacket contains a non-detachable hood with drawstring, full front snap closure over the zipper, and elasticized neck, wrists, and waistband. ISSUE: Whether the presence of the knitted acrylic fabric on the outer shell precludes classification of the jacket under heading 6210, Harmonized Tariff Schedule of the United States Annotated (HTSUSA)? LAW AND ANALYSIS: 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 (usual- ly 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, the PU lamina- tion on the outer shell is clearly visible to the naked eye. Therefore, the outer shell fabric is classifiable under heading 5903, HTSUSA. Heading 6210, HTSUSA, provides for garments made up of fabrics of, inter alia, heading 5903. In HRL 081134 of April 27, 1989, we stated that [t]he term "made up" is defined in Section XI, note 7, which includes articles which are (e) assembled by sewing, gumming or other- wise. Note 7 does not further define the above, so the Explanatory Notes, which con- stitute the official interpretation of the tariff at the international level, are uti- lized. In the General Explanatory Notes, part II, at page 714, it is noted that the term "made up" articles, assembled by sewing, gumming or otherwise, includes garments. Without further express limitation to the term "made up", heading 6210 is interpreted to cover any assembled garment which includes a material classifiable in one of the enumer- ated headings, and which imparts a signifi- cant characteristic to that garment. [It is clear in the instant matter that the PU por- tion of the outer shell, covering the majori- ty of the surface area and providing protec- tion from inclement weather, imparts such a significant characteristic.] Chapter 62, note 5 states that "garments which are, prima facie, classifiable both in Heading 6210 and in other headings of this chapter, excluding Heading 6209, are to be classified in Heading 6210." Even though the instant [merchandise is] specifically des- cribed in [the] heading[] providing for coats, anoraks and similar articles, ... they are, nevertheless, classifiable in Heading 6210, "garments, made up of fabrics of head- ing 5903...." Thus, they are classified according to General Rule of Interpretation (GRI) 1, in Heading 6210. HOLDING: As a result of the foregoing, the instant merchandise is classifiable under subheading 6210.50.1010, HTSUSA, as garments, made up of fabrics of heading 5602, 5603, 5903, 5906 or 5907, other women's or girls' garments, of man-made fibers, having an outer surface impregnated, coated, covered or laminated with rubber or plastics material which completely obscures the under- lying fabric. You should GRANT this protest in full. A copy of this decision should be forwarded to the law firm of Coudert Brothers. Sincerely, John Durant, Director Commercial Rulings Division