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HQ 957061




March 30, 1995

CLA-2 CO:R:C:T 957061 CAB

CATEGORY: CLASSIFICATION

TARIFF NO.: 6201.93.3000

Regional Commissioner of Customs c/o Protest and Control Section
6 World Trade Center, Room 761
New York, NY 10048-0945

RE: Request for Further Review of Protest No. 1001-4-101333, timely filed February 24, 1994, concerning the classification of water resistant garments; Additional U.S. Note 2, Chapter 62, HTSUSA

Dear Sir:

This is a decision on application for further review of a protest timely filed by Grunfeld, Desiderio, Lebowitz & Silverman, on behalf of Haddad Apparel Group. The three entries at issue were liquidated on December 17, 1993.

FACTS:

The merchandise at issue are boys' 100 percent woven nylon jackets that are referred to as Style Nos. 8604, 5604, 5808, 5217, 8217, 6217, and 6w17. The importer states that the outershell of the jackets are coated with 600 mm polyurethane with a 100 percent nylon lining and are quilted along the shoulder panels.

The protestant entered the merchandise in subheading 6201.93.3000 of the Harmonized Tariff Schedule of the United States Annotated (HTSUSA), which provides for men's or boys' water resistant windbreakers and similar articles of man-made fibers. The garments were liquidated in subheading 6201.93.3521, HTSUSA, which provides for men's or boys' windbreakers and similar articles of man-made fibers.

The protestant states that in a test performed by a private laboratory that the vast majority of the tested garment passed the test for water resistance and only the quilted fabric comprising the shoulder panels did not pass the water resistance test. The protestant further asserts that the quilted area of
the garment did not pass the test for water resistance due to the quilt stitching and this area should not be subject to the water resistance test.

The Area Director at JFK Airport asserts that the subject merchandise is not water resistant for tariff classification purposes based on a report from the Customs laboratory in New York.

It is important to note that Customs JFK describes the quilted portion of the subject garment as comprising the shoulder and part of the sleeves as well as the hood. The protestant, on the other hand, describes the quilted portion of the garment as merely the shoulder panels. Without a sample of the subject garment, Customs headquarters is unable to resolve the discrepancy. However, Customs will issue a ruling regarding the validity of the testing performed by the New York Customs laboratory.

ISSUE:

Whether the subject merchandise is classifiable as water resistant garments in subheading 6201.93.3000?

LAW AND ANALYSIS:

Classification of goods under the HTSUSA is governed by the General Rules of Interpretation (GRI's). GRI 1 provides that classification shall be determined according to the terms of the headings and any relative section or chapter notes. Merchandise that cannot be classified in accordance with GRI 1 is to be classified in accordance with subsequent GRI's taken in order.

The issue that Customs must address is whether the subject merchandise is properly classifiable as water resistant garments under Heading 6201, HTSUSA, which provides for men's or boys' overcoats, carcoats, capes, cloaks, anoraks (including ski-jackets), windbreakers and similar articles (including padded, sleeveless jackets), other than those of heading 6203.

Additional U.S. Note 2, Chapter 62, HTSUSA, governs the classification of garments under subheadings in Chapter 62 which specifically provide for "water resistant" garments. The note is as follows, in pertinent part:

[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.

In Exxon Corp. v. United States, 462 F. Supp. 378, 81 Cust. Ct. 87, C.D. 4772 (October 16, 1978), the court stated that absent a conclusive showing that the method for determining water resistance used by Customs is in error, or that our results are erroneous, there is a presumption that the results obtained by Customs are correct.

In Headquarters Ruling Letter (HRL) 085974, dated December 28, 1989, Customs presented the procedural requirements necessary for water resistant testing in accordance with Additional U.S Note 2, Chapter 62, HTSUSA. The requirements are as follows:

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.

In this case, the Customs laboratory tested the outer woven shells of two samples from two of the entries at issue to determine water resistancy in accordance with Additional U.S. Note 2, Chapter 62, HTSUSA. Customs found that the quilted woven panels did not pass the water resistance requirements, while the non-quilted woven panels passed the test for water resistancy. The protestant contends that the quilted fabric did not pass the test solely by virtue of the quilt stitching. The protestant further states that the quilt stitching, rather than the coating applied to the fabric itself, permitted water to pass through the fabric.

As evidence of his position, the protestant provided Customs with a copy of a test report by an independent laboratory which covered the sixteen woven fabrics which were utilized to manufacture the garments at issue. The test report indicates that all sixteen samples passed AATCC test method 35-1985 and only the quilted components failed. The protestant also provides
that if Customs is not satisfied with the testing completed by the independent laboratory, he can provide Customs with 8 X 8 non-quilted swatches of the same fabric.

The Customs laboratory report is specific as to which portions of the garments failed the test and which portions of the garments passed the test. As only the quilted components of the garments failed the test for water resistance, it is Customs belief that the protestant has met his burden of conclusively showing that the method of testing performed by Customs was in error.

In light of HRL 085974, Customs JFK should have offered the protestant an opportunity to provide unquilted piece goods for testing when the portions of the jackets comprised of quilted fabric failed the water resistance test. Although Customs does not usually accept the results of lab tests conducted overseas on piece goods, rather than garments, we believe that under these particular circumstances, there is reasonable evidence to substantiate that had Customs tested unquilted fabric, the goods would have passed the water resistance test. Consequently, the subject merchandise is properly classifiable under subheading 6201.93.3000, HTSUSA, as water resistant windbreakers and similar articles.

HOLDING:

Based on the foregoing, the Style Nos. 8604, 5604, 5808, 5217, 8217, 6217, and 6w17 are classifiable in subheading 6201.93.3000, HTSUSA, which provides for boys' water resistant windbreakers and similar articles of man-made fibers. The applicable rate of duty is 7.6 percent ad valorem and the textile restraint category is 634.

The protest should be allowed in full and a copy of this ruling should be attached to the Customs Form 19 and provided to the protestant as part of the notice of action.

In accordance with Section 3(A)(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 mailing of the decision. Sixty days from the date of the decision the Office of Regulations and Rulings will take steps to make the decision available to Customs
personnel via the Customs Ruling Module in ACS and the public via the Diskette Subscription Service, Freedom of Information Act and other public access channels.

Sincerely,

John Durant, Director
Commercial Rulings Division

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