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