CLA-2 CO:R:C:G 085974 PR
Duncan Nixon, Esquire
Sharretts, Paley, Carter & Blauvelt, P.C.
67 Broad Street
New York, New York 10004
RE: Modification of HRL 082074 and NYRL 826951 Concerning
the Tariff Status of a Water Resistant Jacket
Dear Mr. Nixon:
In your letter of February 24, 1988, you requested that
this office reconsider a ruling by the Area Director of
Customs, New York Seaport, NYRL 826951, dated March 22, 1988.
Our ruling of November 15, 1989, HRL 082074, affirmed NYRL
826951. We have reviewed both of those rulings and
determined that they are in error. Accordingly, pursuant to
Section 177.9, Customs Regulations, this ruling constitutes a
modification of both NYRL 826951 and HRL 082074.
FACTS:
The subject garment is a woman's jacket with a woven
man-made fiber outer shell that has an application of
plastics material on one surface. The plastics can not be
seen with the naked eye. The outer shell fabric was tested
by a Customs laboratory which determined that the outer shell
fabric was "water resistant" pursuant to the requirements of
Additional United States Note 2, Chapter 62, Harmonized
Tariff Schedule of the United States Annotated (HTSUSA),
hereafter referred to as Note 2. However, the seams did not
meet the requirements of Note 2.
NYRL 826951 ruled that the jacket was classifiable under
the provision for other woman's anoraks (including ski
jackets), windbreakers, and similar garments, in Subheading
6202.93.5010, HTSUSA. That ruling did not address the issue
of whether the garment was classifiable under a similar
provision for "water resistant" garments, in Subheading
6202.93.4500, HTSUSA, because the initial inquiry did not
mention that the garment would meet the requirements of
Additional U.S. Note 2. Reconsideration of that ruling was
requested and HRL 082074 affirmed NYRL 826951 on the basis
that the seams of the jacket did not meet the Note 2
standards for water resistance.
ISSUE:
The issue presented is whether a garment's seams must be
"water resistant" within the purview of Note 2 in order for
that garment to qualify for classification as a water
resistant garment in Subheading 6202.93.4500, HTSUSA.
LAW AND ANALYSIS:
For the purposes of certain enumerated subheadings, Note
2 provides;
[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.
Subheading 6202.93.45 is specifically stated to be one of the
subheadings to which Note 2 is applicable.
The Customs Service assisted the Office of the United
States Trade Representative in the drafting of Note 2. The
intention of that note, and the United States subheadings
enumerated therein, was to establish duty neutral provisions
which would cover a large number of the garments that, prior
to January 1, 1989, were classifiable under items 376.54 and
376.56, Tariff Schedules of the United States Annotated
(TSUSA), and which did not qualify after that date for
classification under Heading 6210, HTSUSA, which contains the
provisions carrying forward the duty rates applicable to
items 376.54 and 376.56.
Items 376.54 and 376.56, TSUSA, provided for garments
designed for rainwear, hunting, fishing, and similar uses,
wholly or almost wholly of fabrics which were coated or
filled, or laminated with rubber or plastics. Heading 6210
provides for garments made up of, among other things, fabrics
which have been coated, covered, or laminated with plastics
or rubber. The two provisions appear on their face to cover
much of the same merchandise. However, because the legal
standards governing what constitutes a coating, covering or
lamination in the HTSUSA differ from the legal requirements
for a coating or filling under the TSUSA, a substantial
amount of the merchandise which was classifiable in items
376.54 and 376.56 is not classifiable under Heading 6210.
The subject jacket falls within this category of goods.
Under the TSUSA, the Court of International Trade stated
that, absent statutory authority, Customs could not require
that a garment pass a water resistance test (commonly called
the "cup test") for that garment to be classifiable in item
376.56. Pacific Trail Sportswear v. United States, 5 CIT 206
(1983). According to the court, to be classifiable in
376.56, a garment must have been made of a plastics coated
or filled, or laminated fabric which provided protection to
the wearer from moisture and dampness. Thus, under the
TSUSA, the seams of a garment were not considered in
determining whether a garment was classifiable in items
376.54 and 376.56.
Since seams (and quilting stitching) were not a factor
in the classification of this garment prior to January 1,
1989, and the purpose of Note 2 and the subheadings in
Chapter 62 for "water resistant" garments was to maintain as
much duty neutrality between the TSUSA and the HTSUSA as
possible, Customs is of the view that seams (and quilting
stitching) should not be subjected to the test required by
Note 2 unless the garment in question contains a highly
unusual amount of seams (or quilting stitching).
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.
HOLDING:
A Customs laboratory determined that the outer shell
fabric of the jacket in question was water resistant.
Accordingly, the jacket is classifiable under the provision
for anoraks (including ski jackets), windbreakers, and
similar garments, in Subheading 6202.93.4500, HTSUSA, with
duty, as product of Korea, at the 1989 rate of 7.6 percent ad
valorem. The designated textile and apparel category for
that subheading is 635.
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 renegotiations and
changes, to obtain the most current information available, we
suggest that you check, close to the time of shipment, the
Status Report On Current Import Quotas (Restraint Levels), an
internal issuance of the U.S. Customs Service, which is
available for inspection at your 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, you should contact
your local Customs office prior to importing the merchandise
to determine the current applicability of any import
restraints or requirements.
Sincerely,
Harvey B. Fox, Director
Office of Regulations
and Rulings