CLA-2 CO:R:C:T 951019 jb
District Director of Customs
300 South Ferry Street
Terminal Island
Room 2017
San Pedro, CA 90731
RE: Request for Further Review of Protest No. XXXXXXXXXXXXXX,
dated December 7, 1989; classification of Men's and Women's
Jackets, water resistant; subheading 6201.93.30, HTSUSA;
subheading 6202.93.45, HTSUSA
Dear Sir:
This is a decision on application for further review of a
protest timely filed on behalf of Odyssey International, on
December 7, 1989, against your decision regarding the
classification of men's and women's jackets. The entry was
liquidated on September 8, 1989. Our decision on the matter
follows.
FACTS:
The merchandise involved consists of two identically
described garments, one for men, the other for women, and can be
described as golf jackets.
Each is waist-length, with a rib knit collar, cuffs and
waistband made of 100 percent acrylic knit material. Each has a
full front zippered opening and an outershell made of 65 percent
polyester and 35 percent cotton woven fabric, that has been
treated with DuPont ZEPEL, a water repellent fluoropolymer. The
garments have a lining of 100 percent nylon woven material.
A sample was provided to our office.
The original problem which arose in this protest was the
inability to detect the presence of the plastic finish. Unlike
true coatings, ZEPEL does not lay on the surface of the fabric to
which it is applied. As such, it was not detectable by standard
visual observation, such as simple microscopy. Because the
plastic was not detected in the original Customs examination, the
merchandise was returned as not qualifying as a plastics
"application" for purposes of Additional U.S. Note 2, Chapter 62,
HTSUSA.
Subsequently, upon the determination of a Customs
laboratory's revised report, it was decided that the DuPont ZEPEL
finish met the statutory requirement of having a detectable
application of a plastics material. However, a further issue was
raised by Test Report T-03-2745, dated December 14, 1988, from
Odyssey International, Ltd, submitted by the protestant, which
stated that the merchandise passed the spray test in its original
condition but failed the test after three launderings.
ISSUE:
Whether the merchandise at issue is water resistant and
whether a three launderings test is applicable?
LAW AND ANALYSIS:
Classification of merchandise under the Harmonized Tariff
Schedule of the United States Annotated (HTSUSA) is governed by
the General Rules of Interpretation (GRI's). GRI 1 requires that
classification be determined according to the terms of the
headings in the tariff and any pertinent section or chapter
notes. Where goods cannot be classified solely on the basis of
GRI 1, the remaining GRI's will be applied, taken in order.
U.S. Note 2, Chapter 62, HTSUSA, provides:
For the purposes of subheading 6201.92.15..., the 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.
DuPont ZEPEL has been the subject of several Customs
rulings. Those rulings have determined that DuPont ZEPEL is
acceptable as a plastics application which meets the standards
for water resistance (See Headquarters Ruling Letter (HRL)
086879, dated June 8, 1990, HRL 086951, dated July 17, 1990, and
Headquarters Ruling (HQ) 087553, dated October 16, 1990).
We consulted with the Office of Laboratories and Technical
Services regarding the technical application of Additional U.S.
Note 2, Chapter 62, HTSUSA. ASTM designations D 3600-81 (ASTM D
3600-81 has since been replaced by ASTM D 3779-81) and D 3781-
79, are standard performance specifications. These methods
detail the specifications that may be adopted in the water
resistance analysis. A listing of specification requirements is
contained in both methods.
The category for water resistance lists three options for
head pressures and time requirements that may be selected as
specifications for the water resistance analysis. One such
option is that found under U.S. Note 2, Chapter 62, HTSUSA, i.e.,
for rain testing, a head pressure of 600 millimeters and two
minutes of testing.
The water resistance rain test is also mentioned in ASTM D
3600-81, section 7.6 and ASTM D 3781-79, section 7.4. ASTM D
3600-81 states ..."Determine the water resistance (rain test) on
the original fabric and after three launderings as in 7.4.2.1 or
three dry cleanings as in 7.4.3 as directed in AATCC Method 35-
1974." A similar provision is found in ASTM D 3781-79, with the
only difference being five launderings.
The ASTM methods are mentioned only for reference purposes.
They identify the origin of the 600 millimeter head pressure, two
minute guidelines since the specifications of head pressure and
time limits are not referenced in AATCC Test Method 35-1985.
Thus, U.S. Note 2, Chapter 62, HTSUSA, directs the use of AATCC
Test Method 35-1985 for all facets of the test that are not
specifically mentioned in the U.S. Note. The AATCC Method makes
no reference to laundering the sample.
Discussions with members of both the American Association of
Textiles Chemists and Colorists (AATCC) and the American Society
of Testing Materials (ASTM) reveal similar findings. That is to
say, the purpose of AATCC 35-1985 is to provide a procedure to
measure the character of fabric to penetration and resistance to
water. There is no reference made to washing and drying.
Similarly, ASTM D 3600-81 and 3781-79 do not propose any rigid
requirements to launder. Laundering is suggested as an option to
alert the buyer that the degree of water resistance will vary
from garment to garment; from permanent to semi-permanent
resistance to water. Laundering remains an option to be decided
upon by the interested parties (e.g., purchaser, seller),
depending on the particular fabric involved.
The construction of the sentence in U.S. Note 2, Chapter 62,
HTSUSA, thus leads one to a literal interpretation. Namely,
having not made mention to a "three launderings" test, no such
testing is required. What is crucial, and remains the linchpin
of the Note, is that the garment be tested pursuant AATCC 35-
1985, outlining the procedural test for water resistance (rain
test).
In both the trade and in Customs' practice, the laundering
test option has seldom been used. Consequently, in Customs'
view, the jackets are water resistant for the following reasons:
1. the acceptance of DuPont ZEPEL as a plastic application;
and
2. successful performance on water resistance tests meeting
the requirements of Additional U.S. Note 2, Chapter 62,
HTSUSA (600 millimeter head pressure, two minute
guidelines)
HOLDING:
The subject garments are "water resistant" as defined in
Additional U.S. Note 2, Chapter 62, HTSUSA. Therefore, the
garments are properly classifiable as water resistant jackets in
subheading 6201.93.30, HTSUSA, (men's), textile category 634, and
subheading 6202.93.45, HTSUSA, (women's), textile category 635.
The applicable rate of duty for both the men's and women's
jackets is 7.6 percent ad valorem.
The protest should be granted 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
Commercial Rulings Division