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HQ 951019


June 2, 1992

CLA-2 CO:R:C:T 951019 jb

CATEGORY: CLASSIFICATION

TARIFF NO.: 6201.93.30; 6202.93.45

District Director of Customs
300 South Ferry Street
Terminal Island
Room 2017
San Pedro, CA 90731

RE: Request for Further Review of Protest No. XXXXXXXXXXXXXX, dated December 7, 1989; classification of Men's and Women's Jackets, water resistant; subheading 6201.93.30, HTSUSA; subheading 6202.93.45, HTSUSA

Dear Sir:

This is a decision on application for further review of a protest timely filed on behalf of Odyssey International, on December 7, 1989, against your decision regarding the classification of men's and women's jackets. The entry was liquidated on September 8, 1989. Our decision on the matter follows.

FACTS:

The merchandise involved consists of two identically described garments, one for men, the other for women, and can be described as golf jackets.

Each is waist-length, with a rib knit collar, cuffs and waistband made of 100 percent acrylic knit material. Each has a full front zippered opening and an outershell made of 65 percent polyester and 35 percent cotton woven fabric, that has been treated with DuPont ZEPEL, a water repellent fluoropolymer. The garments have a lining of 100 percent nylon woven material. A sample was provided to our office.

The original problem which arose in this protest was the inability to detect the presence of the plastic finish. Unlike true coatings, ZEPEL does not lay on the surface of the fabric to which it is applied. As such, it was not detectable by standard visual observation, such as simple microscopy. Because the plastic was not detected in the original Customs examination, the merchandise was returned as not qualifying as a plastics "application" for purposes of Additional U.S. Note 2, Chapter 62, HTSUSA.

Subsequently, upon the determination of a Customs laboratory's revised report, it was decided that the DuPont ZEPEL finish met the statutory requirement of having a detectable application of a plastics material. However, a further issue was raised by Test Report T-03-2745, dated December 14, 1988, from Odyssey International, Ltd, submitted by the protestant, which stated that the merchandise passed the spray test in its original condition but failed the test after three launderings.

ISSUE:

Whether the merchandise at issue is water resistant and whether a three launderings test is applicable?

LAW AND ANALYSIS:

Classification of merchandise under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) is governed by the General Rules of Interpretation (GRI's). GRI 1 requires that classification be determined according to the terms of the headings in the tariff and any pertinent section or chapter notes. Where goods cannot be classified solely on the basis of GRI 1, the remaining GRI's will be applied, taken in order.

U.S. Note 2, Chapter 62, HTSUSA, provides:

For the purposes of subheading 6201.92.15..., the 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.

DuPont ZEPEL has been the subject of several Customs rulings. Those rulings have determined that DuPont ZEPEL is acceptable as a plastics application which meets the standards for water resistance (See Headquarters Ruling Letter (HRL) 086879, dated June 8, 1990, HRL 086951, dated July 17, 1990, and Headquarters Ruling (HQ) 087553, dated October 16, 1990).

We consulted with the Office of Laboratories and Technical Services regarding the technical application of Additional U.S. Note 2, Chapter 62, HTSUSA. ASTM designations D 3600-81 (ASTM D 3600-81 has since been replaced by ASTM D 3779-81) and D 3781- 79, are standard performance specifications. These methods detail the specifications that may be adopted in the water resistance analysis. A listing of specification requirements is contained in both methods.

The category for water resistance lists three options for head pressures and time requirements that may be selected as specifications for the water resistance analysis. One such option is that found under U.S. Note 2, Chapter 62, HTSUSA, i.e., for rain testing, a head pressure of 600 millimeters and two minutes of testing.

The water resistance rain test is also mentioned in ASTM D 3600-81, section 7.6 and ASTM D 3781-79, section 7.4. ASTM D 3600-81 states ..."Determine the water resistance (rain test) on the original fabric and after three launderings as in 7.4.2.1 or three dry cleanings as in 7.4.3 as directed in AATCC Method 35- 1974." A similar provision is found in ASTM D 3781-79, with the only difference being five launderings.

The ASTM methods are mentioned only for reference purposes. They identify the origin of the 600 millimeter head pressure, two minute guidelines since the specifications of head pressure and time limits are not referenced in AATCC Test Method 35-1985. Thus, U.S. Note 2, Chapter 62, HTSUSA, directs the use of AATCC Test Method 35-1985 for all facets of the test that are not specifically mentioned in the U.S. Note. The AATCC Method makes no reference to laundering the sample.

Discussions with members of both the American Association of Textiles Chemists and Colorists (AATCC) and the American Society of Testing Materials (ASTM) reveal similar findings. That is to say, the purpose of AATCC 35-1985 is to provide a procedure to measure the character of fabric to penetration and resistance to water. There is no reference made to washing and drying. Similarly, ASTM D 3600-81 and 3781-79 do not propose any rigid requirements to launder. Laundering is suggested as an option to alert the buyer that the degree of water resistance will vary from garment to garment; from permanent to semi-permanent resistance to water. Laundering remains an option to be decided upon by the interested parties (e.g., purchaser, seller), depending on the particular fabric involved.

The construction of the sentence in U.S. Note 2, Chapter 62, HTSUSA, thus leads one to a literal interpretation. Namely, having not made mention to a "three launderings" test, no such testing is required. What is crucial, and remains the linchpin of the Note, is that the garment be tested pursuant AATCC 35- 1985, outlining the procedural test for water resistance (rain test).

In both the trade and in Customs' practice, the laundering test option has seldom been used. Consequently, in Customs' view, the jackets are water resistant for the following reasons:

1. the acceptance of DuPont ZEPEL as a plastic application; and
2. successful performance on water resistance tests meeting the requirements of Additional U.S. Note 2, Chapter 62, HTSUSA (600 millimeter head pressure, two minute guidelines)

HOLDING:

The subject garments are "water resistant" as defined in Additional U.S. Note 2, Chapter 62, HTSUSA. Therefore, the garments are properly classifiable as water resistant jackets in subheading 6201.93.30, HTSUSA, (men's), textile category 634, and subheading 6202.93.45, HTSUSA, (women's), textile category 635. The applicable rate of duty for both the men's and women's jackets is 7.6 percent ad valorem.

The protest should be granted in full and a copy of this ruling should be attached to the Form 19, Notice of Action, furnished to the protestant.

Sincerely,

John Durant, Director

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