
    Pacific Trail Sportswear, plaintiff v. United States, defendant
    Court No. 86-09-01172
    (Decided March 1, 1988)
    
      Rode & Qualey (Michael S. O’Rourke) for plaintiff.
    
      James M. Spears, Acting Assistant Attorney General; Joseph I. Liebman, Attorney in Charge, International Trade Field Office, Department of Justice (Barbara M. Epstein), for defendant.
   Memorandum Opinion and Order

DiCarlo, Judge:

Plaintiff challenges the United States Customs Service (Customs) classification of birch colored ski jackets, entered July, 1985, as "[o]ther men’s or boy’s wearing apparel, not ornamented: [o]f manmade fibers: [n]ot knit: [o]ther: [cjoats * * * [ojther,” under item 379.95, Tariff Schedules of the United States (TSUS), asserting that the ski jackets are properly classifiable as "[g]arments designed for rainwear, hunting, fishing, or similar uses, wholly or almost wholly of fabrics which are coated or filled, or laminated, with rubber or plastics, which (after applying headnote 5 of schedule 3) are regarded as textile materials: * * * [o]ther,” under item 376.56, TSUS. The Court has jurisdiction under 28 U.S.C. § 1581(a) (1982) and holds in favor of plaintiff.

In Pacific Trail Sportwear v. United States, 12 CIT 4, Slip Op. 88-2 (Jan. 8, 1988), the Court denied motions for summary judgment made by plaintiff and defendant, finding a trial necessary to answer the factual question of whether the coating visibly affects the surface of the ski jackets within the meaning of headnote 2(a) of Schedule 3, part 4, subpart C, TSUS.

Based upon the exhibits and testimony presented at trial, the Court made a factual determination that samples of coated fabric found to be identical to that used to make the birch colored ski jackets appeared stiffer and did not drape as much as samples of the un-cocitcd í¿il}ric

In Rosenthal Co. v. United States, 81 Cust. Ct. 77, C.D. 4769, 460 F. Supp. 1246 (1978) aff’d, 67 CCPA 8, C.A.D. 1236, 609 F.2d 999 (1979), the trial court held that under headnote 2(a), the effect imparted by the coating to the fabric, and not the coating itself, must be visible. Noting that the fabric before it had the "appearance of stiffness,” the trial court found the fabric to be "coated within the purview of the controlling headnote.” Id., 81 Cust. Ct. at 80, 460 F. Supp. at 1248.

Since the Court finds the coating on the birch colored ski jackets has an appearance of stiffness, the presumption of correctness that attaches to Customs’ classification has been rebutted. The coating visibly affects the surface of the jackets within the meaning of headnote 2(a).

The Court holds that the birch colored ski jackets are properly classified under item 376.56, TSUS, as claimed by plaintiff. Judgment will be entered accordingly.  