CLA-2:CO:R:C:G 083792 PR 835544
TARIFF NO.:
Duncan A. Nixon, Esquire
Sharretts, Paley, Carter & Blauvelt, P.C.
Eighty Broad Street
New York, New York 10004
RE: Classification of a man's jacket produced in China
Dear Mr. Nixon:
This ruling is in reply to you letter of January 6, 1989,
on behalf of Poplar Imports Inc., requesting the classification
of a man's jacket .
FACTS:
The submitted sample is a man's reversible hip-length hooded
jacket with one woven shell (side A) of 65 percent polyester, 35
percent cotton, and the other woven shell (side B) wholly nylon
with a nonwoven batting stitched to it in a pattern of 4-inch
squares. The nylon fabric is stated to be coated with a plastics
material but that material cannot be seen with the naked eye.
Side "A" has slant zippered pockets at the waist, covered pockets
in the chest area, velcro sleeve tabs, epaulets, a zippered
pocket on the left sleeve, and a covered front zipper. Side "B"
has double entry waist pockets and slant pockets in the chest
area.
The garment was tested by an independent laboratory for
water resistance and passed the requirements set out in United
States Additional Note 2 in Chapter 62, Harmonized Tariff
Schedule of the United States Annotated (HTSUSA). The test was
conducted on the three layers of fabric--the two outer shells and
the batting--as a single unit.
A Customs laboratory also conducted tests. A result similar
to that reached by the private laboratory was obtained when the
three layers of fabric were tested as a unit. However, when as
much of the batting as possible was removed from the "coated"
fabric (side B), without disturbing the quilt stitches, and only
that fabric was tested, the requirements of Note 2 were not met.
ISSUE:
The issue presented is whether, in determining the
applicability of the provisions for "water resistant" garments,
only the coated fabric shell should be tested, or should all the
fabrics comprising the garment be tested as a unit?
LAW AND ANALYSIS:
United States Additional Note 2 in Chapter 62, HTSUSA,
provides, in pertinent part:
[T]he term "water resistant" means that garments * * *
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 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.
The last sentence of Additional Note 2 clearly requires that
the water resistance be the result of a rubber or plastics
application to a specified fabric. The only logical method of
determining that fact is by subjecting that particular fabric to
the required testing procedure. Testing multiple layers of
fabric as a unit does not establish whether the rubber or
plastics application has caused the water resistance. In this
regard, we note that where the Customs laboratory performing the
test deems it appropriate, two tests may be necessary to
determine if a fabric meets the requirements of Note 2--(1) the
fabric without the rubber or plastics application to insure that
the fabric by itself would not pass the test, and (2) the fabric
with the rubber or plastics application to determine that it is
the rubber or plastics material that has caused the fabric to
qualify as "water resistant".
The Customs laboratory performing the tests will, to the
extent possible, use areas not containing quilting stitching or
seams. We are aware that such areas are not likely to pass a
test for water resistance. However, Note 2 specifies that a
particular test must be satisfied and that test requires that a
certain quantitative surface area be utilized. Accordingly,
where a fabric to be tested contains so much stitching or so many
seams that it is impossible to find a meaningful unbroken surface
area for testing, Customs will test a representative portion of
the fabric without regard to the presence of stitching or seams.
Customs is without authority to modify the test specified in
Note 2.
HOLDING:
The submitted sample does not meet the requirements for
classification as "water resistant" in Chapter 62. Accordingly,
it is properly classifiable under the provision for other men's
or boys' anoraks, windbreakers, or similar articles, of man-made
fibers, in Subheading 6201.93.3510, with duty at the rate of 29.5
percent ad valorem. Textile and Apparel Category 634 is
currently applicable to this merchandise.
Due to the changeable nature of the statistical annotations
and the restraint (quota/visa) categories, you should contact
your local Customs office prior to the importation of this
merchandise to determine the current status of any import
restraints or requirements.
Sincerely,
John Durant, Director
Commercial Rulings Division