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HQ 955711

JULY 21, 1994

CLA-2 CO:R:C:T 955711 PR


TARIFF NO.: 6202.93.5010

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

Dear Sir:

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 description:


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.


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 lining.

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 access channels.


John Durant, Director

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