CLA-2:CO:R:C:G 956258 PR
District Director of Customs
1000 2nd Avenue Rm. 2200
Seattle, Washington 98104
RE: Request for Internal Advice
Dear Sir:
This is in reply to your memorandum of January 28, 1994,
concerning water resistant garments. Since general questions
were asked and no specific merchandise or sample has been
presented to rule upon, this letter is not a ruling, but should
be considered a statement of our positions concerning the various
issues you raised affecting the classification of garments
claimed to be water resistant.
Additional U.S. Note 2, chapter 62, Harmonized Tariff
Schedule of the United States Annotated (HTSUSA), governs the
classification of garments under subheadings in chapter 62 which
specifically provide for "water resistant" garments. That note
provides, 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.
Some of your questions deal with the interpretation and
application of Customs Headquarters Ruling (HQ) 085974, dated
December 28, 1989, which stated:
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 -2-
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 rain wear, 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. . . .
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 [and quilting stitching] 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 . . . 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. -3-
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).
(Italics added)
In regard to the above quoted language, you ask (1) what
constitutes "a highly unusual amount of seams (or quilting
stitching)", and (2) what is meant by a "swatch of identical
fabric".
First, we note that the quoted paragraph about a "swatch of
identical fabric" was intended to apply primarily to garments
which, under normal conditions, do not contain an adequate amount
of unseamed (or unquilted) fabric to conduct the tests required
by Additional U.S. Note 2. These garments are, in particular,
infants' and children's apparel, and other apparel which, due to
size, do not contain a sufficient area of fabric to be tested.
It is our view that the paragraph in HQ 085974 containing
the phrase "a highly unusual amount of seams" refers to
multifabric (usually of different colors) garments which were
becoming popular in 1989. Instead of jackets having the then
normal five to seven main outer shell components (including
sleeves), they began having 8 to 12, and sometimes more. In
these multifabric outer shells, many of the fabrics are too small
to test, even on the larger adult sizes.
Thus, the phrase "a highly unusual amount of seams" was
intended to refer to mostly adult garments which contained a
number of fabrics too small to test. What constitutes "a highly
unusual amount of seams" is a subjective determination. It was
anticipated that the responsible field import specialist and/or
Customs laboratory personnel would use their knowledge,
experience, and common sense in assessing the number of seams or
quilting stitching on garment.
In retrospect, it appears that HQ 085974 may have
discriminated between the two classes of garments discussed above
by suggesting that a representative swatch may be tested for one
class of goods while the other class of garments should be tested
in their condition as imported. It is our view that any time a
garment does not contain a sufficient area of fabric to allow
testing for water resistance without including a seam or quilting
stitches, an attempt should be made to obtain a swatch of
identical fabric for testing. If such a swatch is not furnished,
then the fabric which contains a plastics application should be
tested in its condition as found in the garment (including seams,
but minus any padding if the fabric is quilted).
The procedure of allowing an importer to furnish a swatch
goes back to the 1970's (e.g. see HQ 018745, dated July 27, 1972; -4-
HQ 061826, dated February 4, 1980; and, in particular, HQ 070610,
dated February 17, 1983).
No headquarters administrative ruling, of which we are
aware, has set out definitive criteria for determining whether a
swatch meets the "identical fabric" standard. Any such criteria
must, of course, be reasonable. It appears to this office that
it would be unreasonable to reject a swatch solely because that
swatch was not produced at the same time as the original fabric.
In this regard, we note that even samples taken from the same
roll fabric may have different test results. The rejection of
swatches supplied after importation should be based on a
difference in the physical characteristics between the fabric(s)
comprising the subject garments and the submitted swatch(es).
That difference should be articulateable--e.g. different
materials, weight, yarn count, yarn number, etc.
A difference in color is indicative of the fabric coming
from a different roll. However, we have received information
from our Office of Laboratory and Scientific Services that a
difference in color, by itself, should not significantly affect
test results. Accordingly, a difference in color, by itself,
should not be a justification to reject the test results of an
after supplied swatch.
We adhere to the position stated in HQ 951756, dated June
15, 1993, that, at the responsible import specialist's
discretion, the testing results for water resistancy may be
applied to other shipments of identical merchandise. In this
context, "identical merchandise" means same garments from same
supplier made from same fabric(s). A difference in size(s) or
minor differences in construction should not prevent garments
from being "identical merchandise". Also, in this context, "same
supplier" means the same producer of the fabric (which may not be
the same entity producing the garments from that fabric). We do
not believe that requiring the "same supplier" is overly strict
because differences in manufacturing technique and equipment may
result in very different products.
We trust the above information responds to all of your
questions and concerns.
Sincerely,
John Durant, Director
Commercial Rulings Division