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HQ 956035




August 1, 1994
CLA-2 CO:R:C:T 956035 jb

CATEGORY: CLASSIFICATION

TARIFF NO.: 6201.93.3521

Patrick D. Gill, Esquire
Rode & Qualey
295 Madison Avenue
New York, NY 10017

RE: Classification of jacket as water resistant; Additional U.S. Note 2 to Chapter 62; non-water resistant hood precludes classification of jacket as water resistant; uniform and established practice

Dear Mr. Gill:

This is in response to your letter, on behalf of your client, M & L International Co., L.P., dated February 18, 1994, regarding the classification of a boy's jacket as water resistant. A sample was provided to this office for examination and will be returned under separate cover.

FACTS:

The submitted sample, referenced style number 6359B, is a boy's size 5/6 outerwear jacket with a 100 percent nylon woven outershell which, for the purpose of this ruling request, you request it be assumed that the outer shell meets the water resistance test of Chapter 62, Additional U.S. Note 2. The jacket is lined with a knit fleece fabric which extends beyond the neck of the garment to form an integral hood which has a threaded drawstring with plastic cord tips. The jacket also features a full frontal opening with snap closure, side pockets, long sleeves with ribbed knit cuffs and a ribbed waistband.

You claim that:

1. the hood is only a "peripheral" aspect of the jacket and that consequently the jacket should be classified as a water resistant garment as supported by:
a. GRI 3(b) addressing composite goods
b. Additional U.S. Note 2 to Chapter 62, HTSUSA
c. Pacific Trail Sportswear v. United States, 5 C.I.T. 206 (1983)
d. New York Ruling Letter (NY) 874163, dated May 27, 1992.

2. there has been consistent classification of this type of garment by Customs which amounts to a uniform and established practice within the meaning of 19 U.S.C. 1315(d).

ISSUE:

Whether the submitted garment is classifiable as a water resistant garment?

LAW AND ANALYSIS:

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

You state that if, in our opinion, the hood is determined to be a significant component of the garment, then the garment must be viewed as a composite good consisting of a water resistant woven jacket and a non-water resistant knitted hood. In that event, the classification must be resolved as per the terms of GRI 3(b). There are several problems with this conclusion.

An analysis based on the General Rules of Interpretation mandate that the rules be taken in order and that the classification be based on the terms of the headings and any relative section or chapter notes. Only when a determination cannot be made based on GRI 1 should the remaining GRI be taken into consideration. In this case, a classification determination cannot be made as per GRI 1 and as such, we proceed to GRI 3(b) which requires a determination of the component which imparts the essential character. In that light, we agree with your assertion that at this point, at the six digit international level, the classification of the garment is according to its outer shell. But, once we proceed to the eight digit level, Additional U.S. Note 2 to Chapter 62, HTSUSA, has to be taken into consideration, which shifts the focus back on the garment in its entirety, and not just the outer shell.

Chapter 62, HTSUSA, provides for articles of apparel and clothing accessories not knitted or crocheted. Additional U.S. Note 2 to Chapter 62, HTSUSA, states:

For the purposes of subheadings 6201.92.15, 6201.93.30, 6202.92.15, 6202.93.45, 6203.43.15, 6203.43.35, 6204.63.12, 6204.63.30 and 6211.20.15, 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. (Emphasis added)

Customs has ruled on several occasions that where a claim for water resistance is made, the entire garment must be water resistant, excluding any features on the jacket which are determined to be "mere trimming". If a situation exists where non-water resistant portions of the garment are:

1. considered to serve important functions; or 2. contribute to the garment's character; or 3. cover a significant surface area(s) of the garment.
those portions of the garment are considered beyond mere trimming and the garment is precluded from classification as a water resistant garment.

As was stated in HQ 951756, dated June 15, 1993, referencing Headquarters Ruling Letter (HRL) 087964, dated December 20, 1990:

[T]here is nothing in the language of Additional U.S. Note 2 to Chapter 62 that indicates that only a portion of a garment need be water resistant to make the garment classifiable as water resistant. The test applies to garments, not to fabric. Although we would not preclude classification of a garment as water resistant due to the presence of mere trimming that is not water resistant, we believe that fabric that is more than mere trimming could affect whether a particular garment meets the water resistance test.

(See also, NY 875557, dated July 7, 1992; NY 870303, dated January 27, 1992; HQ 950185, dated November 13, 1991; HQ 087317, dated February 7, 1991 and NY 853392, dated June 29, 1990, regarding garments with features considered beyond mere trimming and accordingly precluded from classification as water resistant garments)

In the case of the instant jacket, the fleece hood is not considered to be mere trimming. Thus, your argument that the hood should be ignored as "peripheral" to the jacket, and that as per the terms of Additional U.S. Note 2 to Chapter 62, HTSUSA, only the shell, lining or interlining of the body of the garment should be considered, cannot hold.

Additional U.S. Note 2 does not limit its application to part only, i.e., the body, it applies to the entire garment. On a garment such as the submitted jacket, the hood contributes materially to the garment's usefulness and essentially, is an integral part of the garment itself. Furthermore, we do not agree that the fleece hood can be held to the same standard as knit collars, cuffs and waistbands. While the former feature can substantially enhance the practical advantages of purchasing a water resistant garment, the latter, do not. That is to say, a water resistant hood on a water resistant jacket will ensure that the wearer's head will also keep dry during rain, while water resistant features on collars, cuffs and waistbands, do not normally add any additional significant protection.

As we have already discussed, we do not agree with your position that the classification of this article at the eight digit level, i.e., as water resistant or not, is based upon a GRI 3(b) essential character determination. As reflected by the previously cited rulings, this office is of the opinion that a correct analysis of this garment is determined by the language of the notes to Chapter 62, HTSUSA. It would follow that the subject garment must be decided based not upon the old language of the former TSUS, but on that of the present and controlling HTSUSA. In that light, we have already discussed in detail the pertinence of Additional U.S. Note 2 to Chapter 62, HTSUSA, to the classification of this garment.

You argue that the case of Pacific Trail Sportswear v. United States, 5 C.I.T. 206 (1983), is particularly relevant to what you consider is an essential character determination. That case, decided under the former Tariff Schedule of the United States (TSUS), regards the classification of a child's ski jacket as water resistant. In coming to its decision the Court made reference to the then pertinent language of the TSUS which provided that the essential character of an article is imparted by the named material, notwithstanding that the article might have significant quantities of some other material(s). The Court held that the coating on the fabric which made it water resistant and water repellant gave the jacket its essential character.

Reference to Pacific raises three principal problems:

1. the argument in Pacific presupposes that the issue is one of essential character, 2. Pacific was decided based upon the language of the old tariff schedule (TSUS), and 3. the garment in Pacific is not identical to the one presently at issue, and thus, a parallel cannot be made between the two garments.

Finally, you make reference to NY 874163, dated May 27, 1992, and claim that this ruling supports your position that a jacket with a water resistant outer shell and a non-water resistant integral hood is properly classifiable as a water resistant garment. That ruling has been found to be in error and is accordingly being modified to reflect a determination that will be consistent with past Customs rulings holding that a water resistant jacket with non-water resistant features considered beyond mere trimming are precluded from classification as water resistant.

Because it is our opinion that the fleece hood is beyond mere trimming, serving an important function and contributing to the overall character and purpose of the garment, the garment is precluded from classification as a water resistant garment.

You have aragued that a uniform and established practice has developed with respect to these garments. Established practice must be proved by positive evidence. As stated in Sturm, A Manual of Customs Law (1974), at 201, "It is not established by the rulings of one or two collectors [ports] as to a few shipments..." Id., citing, inter alia, United States v. H. Reeve Angel & Co. Inc., 33 CCPA 114, C.A.D. 324 (1946), cert. den. 328 U.S. 835 (1946).

HOLDING:

The subject boy's hooded jacket, referenced style number 6359B, is classified in subheading 6201.93.3521, HTSUSA, which provides for, inter alia, other boys' anoraks, windbreakers and similar garments, of man-made fibers. The applicable rate of duty is 29.5 percent ad valorem and the quota category is 634.

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 negotiations and changes, we suggest that your client check, close to the time of shipment, the Status Report on Current Import Quotas (Restraint Levels), an issuance of the U.S. Customs Service which is updated weekly and is available at the 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, your client should contact the local Customs office prior to importing the merchandise to determine the current status of any import restraints or requirements.

Sincerely,

John Durant, Director

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