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HQ 951756

June 15, 1993

CO:R:C:T 951756 SK


TARIFF NO.: 6202.93.5010

District Director
U.S. Customs Service
55 Erieview Plaza
Plaza Nine Building
Cleveland, OH 44114

RE: Request for further review of protest no. 4103-92-100015 (1/9/92); classification of ladies' woven jackets under subheading 6202.93.5010, HTSUSA; not water-resistant therefore not classifiable under subheading 6202.93.4500; presumption that Customs' lab results are correct; Exxon Corp. V. U.S. 462 F. Supp. 378, 81 Cust. Ct. 87, C.D. 4772 (1978).

Dear Sir:

This is a decision on application for further review of a protest timely filed by Grunfeld, Desiderio, Lebowitz & Silverman on behalf of Lerner Stores, against your decision regarding the classification of women's jackets. The six entries at issue were liquidated on October 11, 1991.


The merchandise at issue is a women's woven 100 percent nylon jacket, referenced style number 305. The jacket is long sleeved with a full front zipper and six front snap closures. The garment has velcro-like closures at the neck in which a hood is rolled. The garment also features elasticized cuffs and waist and two front pockets. The outer surface of one arm has a slit pocket and on the other arm is a snap closure pocket. The garment is sized small, medium or large. The jacket has an application of plastics material on the inner surface of the outer shell.

The protestant states that in a test conducted by a private laboratory, the average water penetration was less than one gram: a copy of this report was submitted to Customs and is referenced Exhibit D in the May 13, 1993 submission. The position of the import specialist in Cleveland is that the goods at issue are not
water resistant based on a report from the Customs Laboratory in Chicago. The report states that the goods, although having a plastics application, do not meet the requirements of Additional U.S. Note 2 to Chapter 62 of the Harmonized Tariff Schedule of the United States Annotated (HTSUSA), which require that not more than one gram of water penetrate in a period of two minutes under head pressure of 600 millimeters (mm), when tested in accordance with AATCC Test Method 35-1985.

Protestant disputes the results of Customs' lab analysis and cites the following alleged testing errors which he believes serve to invalidate Customs position that the garments at issue are not water resistant:

1) of the three water resistancy tests performed at the Customs lab, one of the results (Run #2, set forth in Exhibit B in the May 13, 1993 submission) deviates significantly from the other two and therefore indicates that the test as a whole is not "statistically valid" and the entire lab analysis should be discounted;

2) three fabric swatches from a single sample garment should be tested since such an indication exists in AATCC Test Method 35- 1985 (alternatively, should testing three samples from a single garment yield the finding that the article is not water resistant, this finding should only apply to the shipment from which the sample was taken and not to other entries containing identical garments);

3) specific procedures set forth in AATCC Test Method 35-1985 were not followed by the Customs lab and therefore Customs' entire lab analysis is invalidated (i.e., protestant asserts test specimens were not conditioned; only the outer shell of the garment was tested for water resistancy).

Protestant, citing Exxon Corp. v. United States, 462 F. Supp. 378, 81 Cust. Ct. 87, C.D. 4772 (October 16, 1978), asserts that as Customs failed to utilize proper testing procedures, any presumption of the correctness of the Customs lab findings is rebutted and Customs is required to rely upon other evidence in making its water resistance determination, such as that supplied by the importer.


Did the Customs laboratory in Chicago meet all the procedural requirements for determining water resistancy as set forth in Additional U.S. Note 2 to Chapter 62 of the HTSUSA?

Is the garment at issue classifiable as a water resistant garment under subheading 6202.93.4500, HTSUSA?


Classification under the HTSUSA is in accordance with the General Rules of Interpretation (GRI's), taken in order. GRI 1 provides that classification shall be determined according to the terms of the headings and any relative section or chapter notes.

At issue is whether the subject merchandise is properly classifiable as a water resistant garment under subheading 6202.93.4500, HTSUSA, which provides for water resistant women's or girls' overcoats, capes, cloaks, anoraks (including ski jackets), windbreakers and similar articles of man-made fibers.

For the purposes of certain specified subheadings, of which subheading 6202.93.5010, HTSUSA is one, Additional U.S. Note 2, Chapter 62, HTSUSA, provides the following:

"[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 pene- trates 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 the instant case, Customs' lab in Chicago used the prescribed head pressure (600 mm) and testing period (two minutes) in making its water resistancy determination on the subject merchandise. Although not specifically stated in the document containing the lab results, we note that three swatches of fabric from a single garment were tested and the fabric swatches were all properly conditioned prior to testing. These procedures are standard practice for Customs' laboratories although usually this information is not included with the lab results.

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. See Exxon v. U.S. cited supra. In this instance, Customs has followed the testing standards set forth in the tariff schedule; there is no substantive evidence that has been presented to this office which incontrovertibly establishes
that either the methods used by Customs, or the results obtained, were erroneous. Absent this evidence, Customs' results stand and the fabric at issue is determined not to be water resistant for purposes of classification under subheading 6202.93.4500, HTSUSA.

We also refute protestant's argument that, from a scientific point of view, the three tests performed by Customs are invalid because they produced one test result which differed significantly from the other two. With regard to this, we note that according to Customs lab analysts, such a variation is not unusual. Moreover, the two tests which were similar in their results indicated that the garment failed the water resistance test. As set forth above, the tariff test states that if more than one gram of water penetrates the fabric, the garment is not deemed water resistant. Two of Customs' test runs produced results of 10.9 grams and 11.9 grams. This indicates that the garment failed the water resistance test by a substantial margin and the "pass" result of 0.9 grams is more easily discounted.

We further note that the tariff test is a method for determining whether a garment is water resistant, not merely whether fabric is water resistant. Therefore, should a single swatch of fabric taken from a garment be deemed not water resistant, it is of no consequence that another swatch from a different part of the same garment tests positive for water resistance inasmuch as the garment itself will not be water resistant and classification is not proper under subheading 6202.93.5010, HTSUSA. As this office noted in HRL 087964, dated December 20, 1990:

"[T]here is nothing in the language of Additional U.S. Note 2 to Chapter 62 that indicates that only a portion of a garment need be water resistant to make the garment classifiable as water resistant. The test applies to garments, not to fabric. Although we would not preclude classification of a garment as water resistant due to the presence of mere trimming that is not water resistant, we believe that fabric that is more than mere trimming could affect whether a particular garment meets the water resistance test."

This reasoning also invalidates protestant's contention that Customs improperly tested only the outer shell of the jacket for water resistance, instead of the garment itself. Again we stress that if the outer shell of the jacket is found not to be water resistant, then no further testing of other parts of the garment is required because the garment as a whole (excluding trim) cannot be water resistant and therefore will not be classified under subheading 6202.93.4500, HTSUSA.

Protestant further argues that even if style number 305 is not deemed to be water resistant, each shipment and entry should be viewed independently and Customs lab analysis should only be used to determine the classification of the jackets from the specific shipment from which the tested sample originated. This is not an acceptable proposition. So long as subsequent shipments of jackets contain identical merchandise from the same supplier using the same piece goods, Customs will apply the results of its laboratory findings to these articles. To do otherwise would result in an unduly harsh administrative burden on this agency.

As the testing procedures performed by the Customs lab followed those mandated in the tariff test, this office is of the opinion that the lab findings are conclusive; we need not rely on the test results furnished by protestant's independent lab and the merchandise at issue is not deemed to be water resistant for classification purposes.


The merchandise at issue is classifiable under subheading 6202.93.5010, HTSUSA, which provides for women's or girls' overcoats, capes, cloaks, anoraks (including ski jackets), windbreakers and similar articles of man-made fibers: other... women's. The articles are dutiable at a rate of 29.5 percent ad valorem and the textile quota category is 635.

The protest should be denied in full and a copy of this ruling should be attached to the Form 19, Notice of Action, furnished to the protestant.


John Durant, Director

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