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HQ 950791


March 18, 1992

CLA-2 CO:R:C:T 950791 CMR

CATEGORY: CLASSIFICATION

TARIFF NO.: 6201.93.35

District Director
U.S. Customs Service
701 San Jacinto
P.O. Box 52790
Houston, Texas 77052

RE: Protests and Applications for Further Review #5301-0-000136 and #5301-0-000075; Classification of certain boys' jackets and certain men's ski-jackets; not of coated fabric; not water resistant; Customs laboratory report

Dear Sir:

This ruling is in response to the Protests and Applications for Further Review #5301-0-000136 and #5301-0-000075 filed against your classification of the subject jackets as jackets of subheading 6201.93.35, HTSUSA, which provides for, among other things, men's or boys' anoraks (including ski-jackets) of man- made fibers, other, other, other, other.

FACTS:

The protests are against the classification of two separate entries. One involves an entry of men's ski-jackets, the other involves an entry of boys' jackets.

The importer claims the correct classification of the subject men's ski-jackets and boys' jackets is subheading 6201.93.30, HTSUSA, which provides for, among other things, men's or boys' anoraks (including ski-jackets) of man-made fibers, other, other, other, water-resistant. In the alternative, the importer claims classification in either subheading 6210.40.10, HTSUSA (if made up of fabric of heading 5903 [textile fabrics impregnated, coated, covered or laminated with plastics]) or subheading 6210.10.40, HTSUSA (if made up of fabric of heading 5603 [nonwovens, whether or not impregnated, coated, covered or laminated]).

ISSUE:

Are the garments at issue, the men's ski-jackets and the boys' jackets, classifiable as water resistant jackets or as garments of heading 6210, HTSUSA?

LAW AND ANALYSIS:

Sample garments were submitted to the Customs laboratory for testing. The laboratory reported that neither garment had an application of rubber or plastics present on it. Additional U.S. Note 2 of Chapter 62, Section XI, HTSUSA, requires that for a garment to be classifiable as water resistant, this water resistance must be the result of a rubber or plastics application to the outer shell, lining or inner lining. Since the Customs laboratory which tested the samples from the shipments could not detect an application of rubber or plastics on the garments, Customs can not classify the garments as water resistant.

As to the alternative claims, subheading 6210.10.40, HTSUSA, and subheading 6210.40.10, HTSUSA, are rejected. In the case of the first alternative, the outer shells of both the men's and boys' jackets are of 65 percent polyester/35 percent carded cotton woven fabric, not of a nonwoven fabric, and unless it can be shown that the nonwoven polyester inner padding is of unusual importance in this case, classification is determined by the outer shell fabric. Subheading 6210.40.10, HTSUSA, is rejected because it requires a plastics application of some type to be present. We have already stated that the Customs laboratory has eliminated this possibility.

HOLDING:

The garments were correctly classified in subheading 6201.93.35, HTSUSA, as other men's or boys' jackets, not water resistant. The garments fall within textile category 634 and are subject to a duty rate of 29.5 percent ad valorem.

Both protests #5301-0-000136 and #5301-0-000075 should be denied. A copy of this decision should be attached to the Form 19 to be returned to the protestant.

Sincerely,

John Durant, Director
Commercial Rulings Division

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