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HQ 083792


APRIL 10, 1989

CLA-2:CO:R:C:G 083792 PR 835544

CATEGORY: CLASSIFICATION

TARIFF NO.:

Duncan A. Nixon, Esquire
Sharretts, Paley, Carter & Blauvelt, P.C. Eighty Broad Street
New York, New York 10004

RE: Classification of a man's jacket produced in China

Dear Mr. Nixon:

This ruling is in reply to you letter of January 6, 1989, on behalf of Poplar Imports Inc., requesting the classification of a man's jacket .

FACTS:

The submitted sample is a man's reversible hip-length hooded jacket with one woven shell (side A) of 65 percent polyester, 35 percent cotton, and the other woven shell (side B) wholly nylon with a nonwoven batting stitched to it in a pattern of 4-inch squares. The nylon fabric is stated to be coated with a plastics material but that material cannot be seen with the naked eye. Side "A" has slant zippered pockets at the waist, covered pockets in the chest area, velcro sleeve tabs, epaulets, a zippered pocket on the left sleeve, and a covered front zipper. Side "B" has double entry waist pockets and slant pockets in the chest area.

The garment was tested by an independent laboratory for water resistance and passed the requirements set out in United States Additional Note 2 in Chapter 62, Harmonized Tariff Schedule of the United States Annotated (HTSUSA). The test was conducted on the three layers of fabric--the two outer shells and the batting--as a single unit.

A Customs laboratory also conducted tests. A result similar to that reached by the private laboratory was obtained when the three layers of fabric were tested as a unit. However, when as much of the batting as possible was removed from the "coated" fabric (side B), without disturbing the quilt stitches, and only that fabric was tested, the requirements of Note 2 were not met. ISSUE:

The issue presented is whether, in determining the applicability of the provisions for "water resistant" garments, only the coated fabric shell should be tested, or should all the fabrics comprising the garment be tested as a unit?

LAW AND ANALYSIS:

United States Additional Note 2 in Chapter 62, HTSUSA, provides, in pertinent part:

[T]he term "water resistant" means that garments * * * must have a water resistance * * * such that, under a head pressure of 600 millimeters, not more than 1.0 gram of water penetrates after two minutes when tested in accordance with AATCC Test Method 35-1985. This water resistance must be the result of a rubber or plastics application to the outer shell, lining or inner lining.

The last sentence of Additional Note 2 clearly requires that the water resistance be the result of a rubber or plastics application to a specified fabric. The only logical method of determining that fact is by subjecting that particular fabric to the required testing procedure. Testing multiple layers of fabric as a unit does not establish whether the rubber or plastics application has caused the water resistance. In this regard, we note that where the Customs laboratory performing the test deems it appropriate, two tests may be necessary to determine if a fabric meets the requirements of Note 2--(1) the fabric without the rubber or plastics application to insure that the fabric by itself would not pass the test, and (2) the fabric with the rubber or plastics application to determine that it is the rubber or plastics material that has caused the fabric to qualify as "water resistant".

The Customs laboratory performing the tests will, to the extent possible, use areas not containing quilting stitching or seams. We are aware that such areas are not likely to pass a test for water resistance. However, Note 2 specifies that a particular test must be satisfied and that test requires that a certain quantitative surface area be utilized. Accordingly, where a fabric to be tested contains so much stitching or so many seams that it is impossible to find a meaningful unbroken surface area for testing, Customs will test a representative portion of the fabric without regard to the presence of stitching or seams. Customs is without authority to modify the test specified in Note 2.

HOLDING:

The submitted sample does not meet the requirements for classification as "water resistant" in Chapter 62. Accordingly, it is properly classifiable under the provision for other men's or boys' anoraks, windbreakers, or similar articles, of man-made fibers, in Subheading 6201.93.3510, with duty at the rate of 29.5 percent ad valorem. Textile and Apparel Category 634 is currently applicable to this merchandise.

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

Sincerely,

John Durant, Director

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