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HQ 085974


DECEMBER 28, 1989

CLA-2 CO:R:C:G 085974 PR

CATEGORY: CLASSIFICATION

TARIFF NO.: 6202.93.4500; 6202.93.5010

Duncan Nixon, Esquire
Sharretts, Paley, Carter & Blauvelt, P.C. 67 Broad Street
New York, New York 10004

RE: Modification of HRL 082074 and NYRL 826951 Concerning the Tariff Status of a Water Resistant Jacket

Dear Mr. Nixon:

In your letter of February 24, 1988, you requested that this office reconsider a ruling by the Area Director of Customs, New York Seaport, NYRL 826951, dated March 22, 1988. Our ruling of November 15, 1989, HRL 082074, affirmed NYRL 826951. We have reviewed both of those rulings and determined that they are in error. Accordingly, pursuant to Section 177.9, Customs Regulations, this ruling constitutes a modification of both NYRL 826951 and HRL 082074.

FACTS:

The subject garment is a woman's jacket with a woven man-made fiber outer shell that has an application of plastics material on one surface. The plastics can not be seen with the naked eye. The outer shell fabric was tested by a Customs laboratory which determined that the outer shell fabric was "water resistant" pursuant to the requirements of Additional United States Note 2, Chapter 62, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), hereafter referred to as Note 2. However, the seams did not meet the requirements of Note 2.

NYRL 826951 ruled that the jacket was classifiable under the provision for other woman's anoraks (including ski jackets), windbreakers, and similar garments, in Subheading 6202.93.5010, HTSUSA. That ruling did not address the issue of whether the garment was classifiable under a similar provision for "water resistant" garments, in Subheading 6202.93.4500, HTSUSA, because the initial inquiry did not mention that the garment would meet the requirements of Additional U.S. Note 2. Reconsideration of that ruling was requested and HRL 082074 affirmed NYRL 826951 on the basis that the seams of the jacket did not meet the Note 2 standards for water resistance.

ISSUE:

The issue presented is whether a garment's seams must be "water resistant" within the purview of Note 2 in order for that garment to qualify for classification as a water resistant garment in Subheading 6202.93.4500, HTSUSA.

LAW AND ANALYSIS:

For the purposes of certain enumerated subheadings, Note 2 provides;

[T]he term "water resistant" means that garments classifiable in those subheadings must have a water resistance (see ASTM designations D 3600-81 and D 3781- 79) 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.

Subheading 6202.93.45 is specifically stated to be one of the subheadings to which Note 2 is applicable.

The Customs Service assisted the Office of the United States Trade Representative in the drafting of Note 2. The intention of that note, and the United States subheadings enumerated therein, was to establish duty neutral provisions which would cover a large number of the garments that, prior to January 1, 1989, were classifiable under items 376.54 and 376.56, Tariff Schedules of the United States Annotated (TSUSA), and which did not qualify after that date for classification under Heading 6210, HTSUSA, which contains the provisions carrying forward the duty rates applicable to items 376.54 and 376.56.

Items 376.54 and 376.56, TSUSA, provided for garments designed for rainwear, hunting, fishing, and similar uses, wholly or almost wholly of fabrics which were coated or filled, or laminated with rubber or plastics. Heading 6210 provides for garments made up of, among other things, fabrics which have been coated, covered, or laminated with plastics or rubber. The two provisions appear on their face to cover much of the same merchandise. However, because the legal standards governing what constitutes a coating, covering or lamination in the HTSUSA differ from the legal requirements for a coating or filling under the TSUSA, a substantial amount of the merchandise which was classifiable in items 376.54 and 376.56 is not classifiable under Heading 6210. The subject jacket falls within this category of goods.

Under the TSUSA, the Court of International Trade stated that, absent statutory authority, Customs could not require that a garment pass a water resistance test (commonly called the "cup test") for that garment to be classifiable in item 376.56. Pacific Trail Sportswear v. United States, 5 CIT 206 (1983). According to the court, to be classifiable in 376.56, a garment must have been made of a plastics coated or filled, or laminated fabric which provided protection to the wearer from moisture and dampness. Thus, under the TSUSA, the seams of a garment were not considered in determining whether a garment was classifiable in items 376.54 and 376.56.

Since seams (and quilting stitching) were not a factor in the classification of this garment prior to January 1, 1989, and the purpose of Note 2 and the subheadings in Chapter 62 for "water resistant" garments was to maintain as much duty neutrality between the TSUSA and the HTSUSA as possible, Customs is of the view that seams (and quilting stitching) should not be subjected to the test required by Note 2 unless the garment in question contains a highly unusual amount of seams (or quilting stitching).

The test required by Note 2 is made on an eight inch (per side) square of fabric. If it is determined by the responsible Customs import specialist that there is a question whether a particular garment qualifies under Note 2 for classification as a "water resistant" garment and an eight inch square piece of fabric without seams (or quilting stitching) cannot be obtained from the garment, then Customs will accept and test a separate swatch of identical fabric. If no such fabric is submitted for Customs to test, the test will be performed on a representative section of fabric from
the garment without regard to whether that fabric contains a seam (or quilting stitching). If the test is performed on more than one section of fabric and one section passes but another section does not, the garment will not be considered to have complied with the requirements of Note 2.

HOLDING:

A Customs laboratory determined that the outer shell fabric of the jacket in question was water resistant. Accordingly, the jacket is classifiable under the provision for anoraks (including ski jackets), windbreakers, and similar garments, in Subheading 6202.93.4500, HTSUSA, with duty, as product of Korea, at the 1989 rate of 7.6 percent ad valorem. The designated textile and apparel category for that subheading is 635.

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.

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

Sincerely,

Harvey B. Fox, Director

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