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HQ 085420

March 23, 1990

CLA-2 CO:R:C:G 085420 CC


TARIFF NO.: 6201.93.3000, 6201.93.3520

Mr. Duncan A. Nixon
Sharretts, Paley, Carter & Blauvelt, P.C. 67 Broad Street
New York, N.Y. 10004

RE: Classification of a "Freezy Freakies boys' jacket"

Dear Mr. Nixon:

This letter is in response to your inquiry of August 23, 1989, on behalf of David Peyser Sportswear, Inc., requesting tariff classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) of a "Freezy Freakies boys' jacket."


The sample at issue, designated as Style 4FF1, is a hip- length jacket with an elastic waistband, rib knit cuffs, a full front opening with a zipper, slant pockets at the waist with zippers, and a woven nylon lining quilted to a nonwoven polyester insulation. The outer shell is constructed of a woven nylon fabric, which has a plastics material applied on the underside, that you maintain makes the garment water resistant. On each sleeve there is an insert of polyurethane coating on knit textile fabric, which you call the "Freezy Freakies" fabric. The coating, which appears white, is also on knit fabric on the front storm flap, the pocket edging, and the chest and sleeves as piping between seams. When exposed to cold temperatures, the exterior plastics coating on the fabric changes color.


Whether the sample garment is classifiable in Heading 6113, 6201, or 6210, HTSUSA?


Classification of merchandise under the HTSUSA is in accordance with the General Rules of Interpretation (GRI's), taken in order. GRI 1 provides that classification shall be determined according to the terms of the headings and any relative section or chapter notes.

The "Freezy Freakies" coating covers the knitted fabric portion of the boys' jacket at issue. Heading 6113, HTSUSA, provides for garments made up of knitted or crocheted fabrics of Headings 5903, 5906, or 5907. Note 2 to Chapter 59 states that Heading 5903 applies to the following:

(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." The plastics material added to the fabric must be visibly distinguishable from that fabric without the use of magnification.

Upon examination, the plastics material is visibly distinguishable from the knit fabric. Having determined that the knit fabric is coated with plastics, we must decide whether the jacket is made up of this material for purposes of Heading 6113.

We note that an Explanatory Note to Chapter 61 states the following:

The classification of goods in this Chapter is not affected by the presence of parts or accessories of, for example, woven fabrics, furskin, feathers, leather, plastics or metal. Where, however, the presence of such materials constitutes more than mere trimming the articles are classified in accordance with the relative Chapter Notes (particularly Note 4 to Chapter 43 and Note 2(b) to Chapter 67, relating to the presence of furskin and feathers, respectively), or failing that, according to the General Interpretive Rules.

In HRL 081134, dated April 27, 1989, the term "made up" [of] was interpreted, for purposes of Heading 6210, HTSUSA, "to cover any assembled garment which includes a material classifiable in one of the enumerated headings [5602, 5603, 5903, 5906, 5907], and which imparts a significant characteristic to that garment." This definition of "made up" [of] is applicable to Heading 6113, HTSUSA.

We would agree that the knitted fabric coated with the "Freezy Freakies" plastic imparts a significant characteristic to the jacket at issue. Those portions of the jacket provide a decorative effect by changing color in cold temperatures. In addition, the coated knit fabric covers enough of the jacket to be considered more than mere trimming. Therefore, the jacket at issue is classifiable in Heading 6113.

The jacket also contains woven fabric. Applying Note 2(a)(1) of Chapter 59 to the woven nylon fabric of the jacket, using normally corrected vision in a well-lighted room, we do not believe that the plastics material is visible to the naked eye. Thus, the jacket at issue is not classifiable in Heading 6210. It would be classifiable in Heading 6201, HTSUSA, which provides for anoraks, windbreakers, and similar articles.

Note 7 to Chapter 61 provides that garments which are, prima facie, classifiable both in Heading 6113 and in other headings of this chapter are to be classified in Heading 6113. Since the competing heading, 6201, is in a different chapter, this chapter note is not applicable. After having applied GRI 1, we are left with competing headings, 6113 and 6201, for classification of the jacket at issue. Therefore, we must apply the remaining GRI's.

GRI 3(b) provides that mixtures, composite goods consisting of different materials or made up of different components, and goods put up in sets for retail sale, shall be classified as if they consisted of the material or component which gives them their essential character.

In HRL 084118, dated April 13, 1989, copy attached, we stated that for upper or lower body garments, if one component exceeds 60 percent of the visible surface area, that component, in essence, imparts the essential character to the garment and will determine the classification of it. The woven fabric clearly exceeds 60 percent of the visible surface area of the jacket at issue. Therefore, the sample jacket is classified in Heading 6201, HTSUSA.


If the jacket at issue meets the test for water resistance in Additional U.S. Note 2 to Chapter 62, HTSUSA, it is classified under subheading 6201.93.3000, HTSUSA, which provides for articles of apparel and clothing accessories, not knitted or crocheted, men's or boys' anoraks (including ski-jackets), windbreakers, and similar articles, of man-made fibers, other, other, other, water resistant. The rate of duty would be 7.6 percent ad valorem and the textile category would be 634.

If the jacket at issue does not meet the test for water resistance in Additional U.S. Note 2 to Chapter 62, HTSUSA, it is classified under subheading 6201.93.3520, HTSUSA, which provides for articles of apparel and clothing accessories, not knitted or crocheted, men's or boys' anoraks (including ski-jackets), windbreakers, and similar articles, of man-made fibers, other, other, other, other, boys'. The rate of duty would be 29.5 percent ad valorem and the textile category would be 634.

Your sample is being returned under separate cover.

Due to the changeable nature of the statistical annotation (the ninth and tenth digits of the classification) and the restraint (quota/visa) categories applicable to textile merchandise, you should contact your local Customs office prior to importation of this merchandise to determine the current status of any import restraints or requirements.

The designated textile and apparel category may be subdivided into parts. If so, visa and quota requirements applicable to the subject merchandise may be affected. Since part categories are the result of international bilateral agreements which are subject to frequent renegotiations and changes, to obtain the most current information available, we suggest that you check, close to the time of shipment, the Status Report On Current Import Quotas (Restraint Levels), an internal issuance of the U.S. Customs Service, which is available for inspection at your local Customs office.


John Durant, Director

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