CLA-2 CO:R:C:T 955711 PR
District Director of Customs
55 Erieview Plaza
Cleveland, Ohio 44114
RE: Request for Further Review of Protest 4103-93-100118
Dated May 6, 1993, Concerning the Classification
of Jackets Claimed to be Water Resistant
This ruling is on the protest that was filed against your
decision in the liquidation on April 23, 1993, of an entry
covering certain suit-like garments.
On September 5, 1992, certain jacket and pant sets,
subsequently entered as track suits, were imported into the
United States. No samples were received by this office.
However, a commercial invoice in the entry package contains this
LADIES COATED JACKET AND UNCOATED PANTS
PANTS: 60PCT NYLON 40PCT POLYESTER
JACKET: 60PCT NYLON 40PCT POLYESTER WITH PU COATING
* * *
FIBER CONTENT (WOVEN)
JACKET - OUTERSHELL: 52% NYLON
LINING : 100% NYLON COATED.(W/POLYURETHANE)
PANTS - OUTERSHELL: 52% NYLON 48% POLYESTER
LINING : 65% POLYESTER 35% COTTON
A Customs Form 29, Notice of Action, was sent on February
19, 1993, notifying the importer of a rate advance. The
notification stated that the garments making up the set would be
classified separately for the following reason:
Due to the fact that the jacket has a substantial
amount of quilting with a batting, we believe these
items are excluded as tracksuits [sic] because of the
extra warmth that is provided by these features.
The jackets were classified in subheading 6202.93.5010,
Harmonized Tariff Schedule of the United States Annotated
(HTSUSA), which provides for other women's anoraks, windbreakers,
and similar garments, of man-made fibers, not water resistant and
not containing 36 percent or more by weight of wool or fine
animal hair, with duty at the rate of 29.5 percent ad valorem.
The pants were classified in subheading 6204.63.3510, HTSUSA,
which is a similar provision for other women's trousers, with
duty at the rate of 30.4 percent ad valorem.
The protestant contends that the jackets should have been
classified in subheading 6202.93.4500, HTSUSA, with duty at the
rate of 7.6 percent ad valorem. That provision provides for
other water resistant women's anoraks, windbreakers, and similar
garments, of man-made fibers, not containing 36 percent or more
by weight of wool or fine animal hair. No protest was made
against the classification of the pants.
A Customs laboratory tested both the pants and the jacket
for water resistance. In two tests, the lining of the jacket
with the plastics application failed by an average of 10.55 grams
of water permeation. By contrast, the outer shell (nontreated)
fabric of the jacket failed by an average of 10.3 grams of water
permeation. We have been advised by our Office of Laboratory and
Scientific Services that the reason for the anomaly of the
plastic treated fabric being less water resistant than the outer
shell is that the plastic treated fabric was made with a looser
weave than the outer shell and that the plastics application on
the lining fabric was not continuous.
On May 6, 1993, Customs received the importer's protest from
its legal representative. That protest had two stated bases--(1)
that the jackets with coated linings were classifiable under
subheading 6202.93.45, and (2)that a denial (of the protest)
would be inconsistent with previous Customs Headquarters rulings.
No further information concerning the latter claim was presented.
In a submission received by Customs on August 4, 1993, the
importer's attorney argued that the jackets should be classified
as being "water resistant" because (1) three independent
laboratories tested the garments and reported that they passed
the statutory requirement for such classification; and (2) the
Customs laboratory test should not be considered because of two
apparent errors--(a) only two samples were tested instead of the
required three, and (b) the tests were made on only the lining
fabric, not on a combination of the outer shell and lining. -3-
No claim is made that the garments should have been
classified as entered, as track suits.
The issue presented is whether Customs should rely on its
laboratory determination that the imported jackets are not "water
resistant" for tariff purposes.
LAW AND ANALYSIS:
The additional submission made on behalf of the importer is
considered to be an elaboration of an issue presented in the
original protest. Therefore, it does not conflict with 19 CFR
174.14(a), which allows amendments to protests filed within 90
days of the protested action.
Additional U.S. Note 2, chapter 62, HTSUSA, provides that
for the purposes of subheading 6202.93.4500, among others:
[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
As stated in Customs Headquarters Ruling (HQ) 083792, dated
April 10, 1989:
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.
See also HQ 951756 dated June 25, 1993, and HQ 087964 dated
December 20, 1990.
Where there is a conflict between the results obtained by a
Customs laboratory and those obtained by private or independent
laboratories, Customs will, in the absence of evidence that the
testing procedure or methodology utilized by the Customs
laboratory was flawed, accept the Customs laboratory report.
Obviously, Customs has no assurance that the samples tested by -4-
the outside laboratories are the same samples tested by the
Customs laboratory, or that the methodology and techniques
utilized by the outside laboratories are in compliance with the
required methodology and techniques.
The burden of proof is on the importer that the Customs
laboratory report is invalid (HQ 950794, dated March 25, 1992).
In this instance, the importer did not sustain that burden. The
only showing of error on the part of the Customs laboratory is
that it tested two samples instead of three as required by AATCC
Test Method 35-1985. However, The outcome of the two tests made
a third test unnecessary. A third test would have no effect
since it could not have resulted in the three tests averaging one
gram or less water penetration. Accordingly, if the failure of
the Customs laboratory to conduct a third test as required by
AATCC Test Method 35-1985 is considered an error, it is obviously
a harmless one.
The submitted sample does not meet the requirements for
classification as "water resistant" in Chapter 62. Accordingly,
the jackets in question were properly classified and the protest
should be denied in full.
A copy of this decision should be attached to the Customs
Form 19, Notice of Action, and furnished to the protestant no
later than 60 days from the date of this letter. On that date
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 to the public via the Diskette Subscription
Service, Lexis, Freedom of Information Act, and other public
John Durant, Director
Commercial Rulings Division