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HQ 952958


December 17, 1993

CLA-2 CO:R:C:T 952958 HP

CATEGORY: CLASSIFICATION

TARIFF NO.: 6201.93.3000

Ms. Patricia McCauley
District Director
U.S. Customs Service
P.O. Box 52790
Houston, TX 52790

RE: Application for Further Review of Protest No. 5301-1-000634. Anoraks of coated fabric.

Dear Ms. McCauley:

This is in reply to your Memorandum PRO-2-H:C of September 30, 1992, transmitting documentation for Protest 5301-1-000634 and Application for Further Review thereof. Please be aware that this response is issued to your office in conjunction with HRL 950116 of December 7, 1993.

FACTS:

The above Protest was filed by Givens & Kelly, on behalf of their client, on the classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) of ski jackets, Style T4739. Style T3741, which was also part of Entry No. 142- 0107172-8 of December 27, 1989, was protested in 5301-1-100634 and was part of HRL 950116, supra.

Style T4739 is described in entry documentation as a boys' anorak, sizes 8-18, constructed of a 100% texturized nylon outer shell and a 100% nylon 190T plain dyed lining. The outer shell is stated to have a 600mm coating of acrylic applied to it. Further, according to a December 19, 1989, letter to U.S. Customs from the International Department of the importer, Style T4739 is constructed of the same fabric as style T3741.

Style T4739 was entered under subheading 6201.93.35, HTSUSA, as other ski jackets. This provision has an applicable rate of duty of 29.5% ad valorem. Protestant argues that subheading 6201.93.30, HTSUSA, as water resistant ski jackets, is more appropriate. This subheading has an applicable rate of duty of 7.6% ad valorem. Alternatively, protestant argues that classification under heading 6210, HTSUSA, applies if the outer shell of the garment is considered "visibly coated with plastics."

ISSUE:

Whether the garments at issue are water resistant; if not, are they made up of fabrics coated with plastics, as such fabrics are defined by the HTSUSA?

LAW AND ANALYSIS:

Subheading 6201.93.3000, HTSUSA, provides for water resistant anoraks, windbreakers and similar garments. The General Rules of Interpretation (GRIs) to the HTSUSA govern the classification of goods in the tariff schedule. GRI 1 states, in pertinent part, that such "classification shall be determined according to the terms of the headings and any relative section or chapter notes. . . ." Additional U.S. Note 2 to Chapter 62, HTSUSA, defines the term "water resistant" as meaning
garments classifiable [as such] 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 ....

In Customs Laboratory Report 5-90-10446-001 of March 2, 1990, Style T4739 from entry number 14201071728 was tested according to Additional U.S. Note 2. It was found that the sample met the above requirements. Accordingly, the merchandise is appropriately classifiable as a water resistant anorak.

HOLDING:

As a result of the foregoing, the instant merchandise is classified under subheading 6201.93.3000, HTSUSA, textile category 634, as water resistant anoraks, windbreakers and similar garments. The applicable rate of duty is 7.6 percent ad valorem.

Since the rate of duty under the classification listed above is less than the liquidated rate, you are instructed to grant the protest in full. In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, this decision should be mailed by your office to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with the decision must be accomplished prior to the mailing of the decision. Sixty days from the date of the decision the Office of Regulations & Rulings will take steps to make the decision available to Customs personnel via the Customs Rulings Module in ACS, and to the public via the Diskette Subscription Service, Lexis~, Freedom of Information Act, and other public access channels.

Sincerely,

John Durant, Director
Commercial Rulings Division

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