Decision on application for further review of protest no. 3001-92-100663; classification of "oilskin" rain garments; oilcloth; plastic-coated fabric; impregnated fabric; Note 5 to Ch. 59; plastic coating must be "visible to the naked eye"; not classifiable under heading 6210, HTSUSA; heading 6202 and 6211, HTSUSA.
Active· CBP ruling HQ 953011· Issued 1993-02-09
Ruling text
HQ 953011
February 9, 1993
CLA-2 CO:R:C:T 953011 SK
CATEGORY: Classification
TARIFF NO.: 6202.12.2010; 6202.92.2060; 6211.32.0070;
6211.42.0070.
Assistant District Director
U.S. Customs Service
909 First Avenue, Rm. 2039
Seattle, Washington 98174
RE: Decision on application for further review of protest no.
3001-92-100663; classification of "oilskin" rain garments;
oilcloth; plastic-coated fabric; impregnated fabric; Note 5
to Ch. 59; plastic coating must be "visible to the naked
eye"; not classifiable under heading 6210, HTSUSA; heading
6202 and 6211, HTSUSA.
Dear Sir:
This is a decision on application for further review of a
protest timely filed by Foxfire Inc., on August 10, 1992, against
your decision on the classification of oilskin rain garments.
FACTS:
Samples of the oilskin cloth from which the rain garments
are manufactured were submitted to Customs for examination. This
office received samples of the cloth in the following states:
undyed and uncoated; dyed and uncoated; dyed and coated.
The articles at issue are oilskin rain garments which are
manufactured in Australia. The garments are coats, jackets and
vests made from a 100 percent cotton fabric which has been dyed
and thoroughly impregnated with an oil and wax compound. It is
asserted by protestant that this process makes the articles
waterproof. These garments are commercially referred to as
oilskins.
All of the entries were initially entered under subheading
6210.30.2020, HTSUSA, with an attendant rate of duty of 6.6
percent ad valorem. The importer subsequently received a notice
of action indicating that the goods would be classified upon
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liquidation under subheadings 6202.12.2010, 6202.92.2060,
6211.32.0070 and 6211.42.0070, HTSUSA. The first two subheadings
carry a duty of 9.5 percent ad valorem, the latter two 8.6
percent ad valorem.
ISSUE:
Whether the oilskin garments at issue have been impregnated
with an oil and wax compound so that such impregnation is visible
to the naked eye and the garments are deemed made up of fabrics
of heading 5907, HTSUSA, for purposes of classification under
heading 6210, HTSUSA?
LAW AND ANALYSIS:
Classification of merchandise under the HTSUSA is in
accordance with the General Rules of Interpretation (GRI's). GRI
1 requires that classification be determined according to the
terms of the headings and any relative section or chapter notes
and, unless otherwise required, according to the remaining GRI's,
taken in order.
Heading 6210, HTSUSA, provides for "garments made up from
fabrics of headings 5602, 5603, 5903, 5906 or 5907." The
Explanatory Notes (EN) to heading 6210, HTSUSA, at page 856,
state that the heading includes "raincoats, oilskins, divers'
suits ..." [emphasis added]. Notwithstanding that the EN to
heading 6210, HTSUSA, expressly provide for oilskins, the
language of heading 6210 nevertheless requires that oilskins
"must be made up from fabrics of heading 5907" to be classifiable
within this provision.
The terms of Note 5(a) to Chapter 59, state that "heading
5907 does not apply to:
(a) 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 shall be taken of any resulting change of
color."
The sole criterion upon which Customs is to determine
whether fabric is coated or impregnated for purposes of
classification under heading 5907, HTSUSA, is clear and
unambiguous: fabric is classifiable under heading 5907 if the
impregnation or coating is visible to the naked eye. This
standard does not allow the examiner to take the "effects" of the
coating or impregnation into account. Impregnation or coating
will often lend a sheen to fabric, result in a color change, or
increase a fabric's stiffness; these are factors which, while
indicative of the presence of coating or impregnation, may not be
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taken into account in determining whether the coating itself is
visible to the naked eye. If, upon unaided visual examination,
there is the suggestion of the presence of coating or
impregnation, it is then within Customs' discretion to examine
the fabric under magnification. See Headquarters Ruling Letter
(HRL) 082644, dated March 2, 1990.
In the instant case, there is no doubt that the impregnated
fabric swatches have a slight sheen and tacky feel which the
untreated samples do not. This office is of the opinion that
while it is apparent that the fabric has a slight sheen, the
impregnation is not visible to the naked eye. The use of
magnification yielded similar results; there is an undeniable
sheen to the fabric, but no impregnation or coating is actually
discernible.
Protestant also asserts that the wax and oil impregnation
has created a film which occupies the space in the fabric's
interstices, thus obscuring the weave and making the fabric
waterproof. Upon examination, we were unable to see coating-
filled interstices in any of the samples submitted, nor any
obscuring of the fabrics' weave; the same result was yielded
under magnification. (Note, we did not submit these samples to
the Customs laboratory for tests which would determine whether
the treated samples are waterproof, as asserted, or merely water
repellant, as such a finding is not germane to the classification
of these articles.)
Protestant contends that "when an explanatory note
specifically states how an article should be classified, its
language should be relied on unless it is obviously contrary to
some other clear intent of the Tariff Schedule." While this is
generally an accurate statement, in this case, we are required to
circumvent the language of the EN to heading 6210, HTSUSA, in
compliance with Legal Note 5 to Chapter 59 which limits the
articles encompassed within heading 5907.
Notwithstanding the language in the EN to heading 6210,
HTSUSA, oilskins are not unconditionally classifiable within this
heading. The terms of heading 6210, HTSUSA, require that
garments classifiable within this provision be made up from
fabrics of heading 5907. As we have set forth supra, Legal Note
5(a) to Chapter 59, which governs heading 5907, HTSUSA, requires
that coating and impregnations be visible to the naked eye in
order for fabrics to be classifiable within this provision. It
would appear that Legal Note 5(a) to Chapter 59 severely curtails
the applicability of the EN to heading 6210, HTSUSA, at least
where oilskins are at issue. In this situation, the Legal Notes
supersede the terms of the EN as the EN are not binding on
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Customs, but rather constitute the official interpretation of the
tariff at the international level.
In classifying the subject garments, Customs is bound by the
terms of heading 6210, HTSUSA, and, by implication, by Legal Note
5(a) to Chapter 59. As a consequence, Customs is prohibited from
classifying those oilskins within heading 6210, HTSUSA, which
have not been coated or impregnated to the extent that such
treatment is visible to the naked eye. Accordingly, this office
finds that the merchandise the subject of this protest is not
classifiable under heading 6210, HTSUSA, because the fabric's oil
and wax impregnation is not visible to the naked eye. This
conclusion is reached pursuant to the terms of headings 6210,
HTSUSA, and Legal Note 5(a) to Chapter 59.
Although protestant states that the amount of oil and wax on
the subject garments is as great as that to be found on any
oilskin fabric, and therefore it would appear that Customs is
effectively precluding the classification of oilskin garments
from heading 6210, HTSUSA, that is a matter of conjecture.
Protestant may be correct in his assertion that most oilskin
garments contain amounts of oil and wax similar to those garments
at issue. However, as technologies change and as different types
of oilskins are imported into the United States, we will apply
the aforementioned criteria on a case by case basis.
Heading 6202, HTSUSA, provides for women's or girls'
overcoats, carcoats, capes, cloaks, anoraks (including ski
jackets), wind-cheaters, wind-jackets and similar articles ,
other than those of heading 6204, HTSUSA. Heading 6211, HTSUSA,
provides for track suits, ski suits and swimwear; other garments.
As all of the articles at issue are either rain coats, jackets or
vests, they are classifiable under headings 6202 and 6211,
HTSUSA.
HOLDING:
The subject merchandise is classifiable under the following
subheadings:
* 6202.12.2010, HTSUSA, which provides for women's and girls'
overcoats, carcoats, capes, cloaks and similar coats: of cotton:
other... raincoats: women', dutiable at a rate of 9.5 percent ad
valorem, with a textile quota category of 335;
* 6202.92.2060, HTSUSA, which provides for women's and girls'
anoraks (including ski jackets), wind-breakers and similar
articles (including padded, sleeveless jackets): of cotton:
other... other: women's, dutiable at a rate of 9.5 percent ad
valorem, with a textile quota category of 335;
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* 6211.32.0070, HTSUSA, which provides for track suits, ski suits
and swimwear; other garments, men's or boys': of cotton... vests,
dutiable at a rate of 8.6 percent ad valorem, with a textile
quota category of 359;
* 6211.42.0070, HTSUSA, which provides for track suits, ski-
suits and swimwear; other garments, women's or girls': of
cotton... vests, dutiable at a rate of 8.6 percent ad valorem,
with a textile quota category of 359.
As the rate of duty under the classification indicated above
is the same as the rate under which the subject merchandise was
entered, you are instructed to deny the protest in full. A copy
of this decision should be furnished to the protestant with the
Form 19 notice of action.
Sincerely,
John Durant, Director
Source: rulings.cbp.gov — ruling 953011, retrieved 2026-10-12T05:27:21Z, republished verbatim. This digest is informational; only CBP issues binding rulings.