CO:R:C:T 951756 SK
District Director
U.S. Customs Service
55 Erieview Plaza
Plaza Nine Building
Cleveland, OH 44114
RE: Request for further review of protest no. 4103-92-100015
(1/9/92); classification of ladies' woven jackets under
subheading 6202.93.5010, HTSUSA; not water-resistant therefore
not classifiable under subheading 6202.93.4500; presumption that
Customs' lab results are correct; Exxon Corp. V. U.S. 462 F.
Supp. 378, 81 Cust. Ct. 87, C.D. 4772 (1978).
Dear Sir:
This is a decision on application for further review of a
protest timely filed by Grunfeld, Desiderio, Lebowitz & Silverman
on behalf of Lerner Stores, against your decision regarding the
classification of women's jackets. The six entries at issue were
liquidated on October 11, 1991.
FACTS:
The merchandise at issue is a women's woven 100 percent
nylon jacket, referenced style number 305. The jacket is long
sleeved with a full front zipper and six front snap closures.
The garment has velcro-like closures at the neck in which a hood
is rolled. The garment also features elasticized cuffs and waist
and two front pockets. The outer surface of one arm has a slit
pocket and on the other arm is a snap closure pocket. The
garment is sized small, medium or large. The jacket has an
application of plastics material on the inner surface of the
outer shell.
The protestant states that in a test conducted by a private
laboratory, the average water penetration was less than one gram:
a copy of this report was submitted to Customs and is referenced
Exhibit D in the May 13, 1993 submission. The position of the
import specialist in Cleveland is that the goods at issue are not
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water resistant based on a report from the Customs Laboratory in
Chicago. The report states that the goods, although having a
plastics application, do not meet the requirements of Additional
U.S. Note 2 to Chapter 62 of the Harmonized Tariff Schedule of
the United States Annotated (HTSUSA), which require that not more
than one gram of water penetrate in a period of two minutes under
head pressure of 600 millimeters (mm), when tested in accordance
with AATCC Test Method 35-1985.
Protestant disputes the results of Customs' lab analysis and
cites the following alleged testing errors which he believes
serve to invalidate Customs position that the garments at issue
are not water resistant:
1) of the three water resistancy tests performed at the Customs
lab, one of the results (Run #2, set forth in Exhibit B in the
May 13, 1993 submission) deviates significantly from the other
two and therefore indicates that the test as a whole is not
"statistically valid" and the entire lab analysis should be
discounted;
2) three fabric swatches from a single sample garment should be
tested since such an indication exists in AATCC Test Method 35-
1985 (alternatively, should testing three samples from a single
garment yield the finding that the article is not water
resistant, this finding should only apply to the shipment from
which the sample was taken and not to other entries containing
identical garments);
3) specific procedures set forth in AATCC Test Method 35-1985
were not followed by the Customs lab and therefore Customs'
entire lab analysis is invalidated (i.e., protestant asserts test
specimens were not conditioned; only the outer shell of the
garment was tested for water resistancy).
Protestant, citing Exxon Corp. v. United States, 462 F.
Supp. 378, 81 Cust. Ct. 87, C.D. 4772 (October 16, 1978), asserts
that as Customs failed to utilize proper testing procedures, any
presumption of the correctness of the Customs lab findings is
rebutted and Customs is required to rely upon other evidence in
making its water resistance determination, such as that supplied
by the importer.
ISSUES:
Did the Customs laboratory in Chicago meet all the
procedural requirements for determining water resistancy as set
forth in Additional U.S. Note 2 to Chapter 62 of the HTSUSA?
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Is the garment at issue classifiable as a water resistant
garment under subheading 6202.93.4500, HTSUSA?
LAW AND ANALYSIS:
Classification under the HTSUSA is in accordance with the
General Rules of Interpretation (GRI's), taken in order. GRI 1
provides that classification shall be determined according to the
terms of the headings and any relative section or chapter notes.
At issue is whether the subject merchandise is properly
classifiable as a water resistant garment under subheading
6202.93.4500, HTSUSA, which provides for water resistant women's
or girls' overcoats, capes, cloaks, anoraks (including ski
jackets), windbreakers and similar articles of man-made fibers.
For the purposes of certain specified subheadings, of which
subheading 6202.93.5010, HTSUSA is one, Additional U.S. Note 2,
Chapter 62, HTSUSA, provides the following:
"[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 pene-
trates 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 the instant case, Customs' lab in Chicago used the
prescribed head pressure (600 mm) and testing period (two
minutes) in making its water resistancy determination on the
subject merchandise. Although not specifically stated in the
document containing the lab results, we note that three swatches
of fabric from a single garment were tested and the fabric
swatches were all properly conditioned prior to testing. These
procedures are standard practice for Customs' laboratories
although usually this information is not included with the lab
results.
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. See Exxon v. U.S. cited supra. In this
instance, Customs has followed the testing standards set forth in
the tariff schedule; there is no substantive evidence that has
been presented to this office which incontrovertibly establishes
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that either the methods used by Customs, or the results obtained,
were erroneous. Absent this evidence, Customs' results stand and
the fabric at issue is determined not to be water resistant for
purposes of classification under subheading 6202.93.4500, HTSUSA.
We also refute protestant's argument that, from a scientific
point of view, the three tests performed by Customs are invalid
because they produced one test result which differed
significantly from the other two. With regard to this, we note
that according to Customs lab analysts, such a variation is not
unusual. Moreover, the two tests which were similar in their
results indicated that the garment failed the water resistance
test. As set forth above, the tariff test states that if more
than one gram of water penetrates the fabric, the garment is not
deemed water resistant. Two of Customs' test runs produced
results of 10.9 grams and 11.9 grams. This indicates that the
garment failed the water resistance test by a substantial margin
and the "pass" result of 0.9 grams is more easily discounted.
We further note that the tariff test is a method for
determining whether a garment is water resistant, not merely
whether fabric is water resistant. Therefore, should a single
swatch of fabric taken from a garment be deemed not water
resistant, it is of no consequence that another swatch from a
different part of the same garment tests positive for water
resistance inasmuch as the garment itself will not be water
resistant and classification is not proper under subheading
6202.93.5010, HTSUSA. As this office noted in 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."
This reasoning also invalidates protestant's contention that
Customs improperly tested only the outer shell of the jacket for
water resistance, instead of the garment itself. Again we stress
that if the outer shell of the jacket is found not to be water
resistant, then no further testing of other parts of the garment
is required because the garment as a whole (excluding trim)
cannot be water resistant and therefore will not be classified
under subheading 6202.93.4500, HTSUSA.
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Protestant further argues that even if style number 305 is
not deemed to be water resistant, each shipment and entry should
be viewed independently and Customs lab analysis should only be
used to determine the classification of the jackets from the
specific shipment from which the tested sample originated. This
is not an acceptable proposition. So long as subsequent
shipments of jackets contain identical merchandise from the same
supplier using the same piece goods, Customs will apply the
results of its laboratory findings to these articles. To do
otherwise would result in an unduly harsh administrative burden
on this agency.
As the testing procedures performed by the Customs lab
followed those mandated in the tariff test, this office is of the
opinion that the lab findings are conclusive; we need not rely on
the test results furnished by protestant's independent lab and
the merchandise at issue is not deemed to be water resistant for
classification purposes.
HOLDING:
The merchandise at issue is classifiable under subheading
6202.93.5010, HTSUSA, which provides for women's or girls'
overcoats, capes, cloaks, anoraks (including ski jackets),
windbreakers and similar articles of man-made fibers: other...
women's. The articles are dutiable at a rate of 29.5 percent ad
valorem and the textile quota category is 635.
The protest should be denied 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