United States International Trade Commision Rulings And Harmonized Tariff Schedule
faqs.org  Rulings By Number  Rulings By Category  Tariff Numbers
faqs.org > Rulings and Tariffs Home > Rulings By Number > 1995 HQ Rulings > HQ 955975 - HQ 956136 > HQ 956041

Previous Ruling Next Ruling

956041 jb
August 1, 1994

Gail T. Cumins, Esquire
Sharretts, Paley, Carter & Blauvelt, P.C. 67 Broad Street
New York, NY 10004

RE: Classification of jacket as water resistant; Additional U.S. Note 2 to Chapter 62, HTSUSA; non-water resistant hood precludes classification of jacket as water resistant; existence of a classification practice; susbheading 6201.93.3511, HTSUSA

Dear Ms. Cumins:

This is in response to your letter, on behalf of your client, Foreign Resources Corporation (FRC), dated March 4, 1994, regarding the classification of a man's reversible jacket as water resistant. No sample was provided to this office for examination.

The garment in question, referenced style number 8620, is a man's reversible jacket composed of one side of woven 100 percent nylon fabric coated with 600 mm of polyurethane and the other side, composed of tri-color knit fleece. The garment also features a permanently attached fleece hood with drawstring, a full frontal opening with heavy zipper closure, snaps at the neck and at the elasticized bottom, long sleeves with elasticized cuffs, slant pockets at the waist on the woven side, and vertical pockets at the waist on the fleece side. For the purpose of this ruling,you request it be assumed that the outer shell, excluding the hood, meets the water resistance test of Chapter 62, Additional U.S. Note 2.

In HO 894223, dated February 10, 1994, Customs determined that the subject garment was precluded from classification as water resistant because the garment features a fleece hood which does not meet the water resistant requirement of Chapter 62, Additional U.S. Note 2.

You claim that the hood is only a "peripheral" aspect of the jacket and that consequently the jacket should be classified as a water resistant garment as supported by:

1. Additional U.S. Note 2 to Chapter 62, HTSUSA;

2. HQ 087964, dated December 12, 1990, and HQ 951756, dated June 15, 1993;

3. New York Ruling Letter (NY) 847287, dated November 27, 1989; and

4. District Decision (DD) 862195, dated April 30, 1991, Houston Decision (HO) 862557, dated May 6, 1991, DD 865069, dated July 31, 1991, DD 873401, dated April 24, 1992, DD 883584, dated April 8, 1993, DD 884583, dated April 16, 1993, DD 884646, dated April 21, 1993, DD 884798, dated April 29, 1993, DD 884731, dated May 4, 1993, HO 886550, dated June 8, 1993, HO 886878, dated June 22, 1993, DD 886533, dated June 23, 1993, DD 886921, dated June 30, 1993, DD 887619, dated July 20, 1993; NY 887628, dated July 21, 1993; DD 888403, dated July 27, 1993, DD 888234, dated July 28, 1993.

Classification of merchandise under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) is in accordance with the General Rules of Interpretation (GRI), taken in order. GRI 1 requires that classification be determined according to the terms of the headings and any relative section or chapter notes, taken in order. Where goods cannot be classified solely on the basis of GRI 1, the remaining GRI will be applied, in the order of their appearance.

Chapter 62, HTSUSA, provides for articles of apparel and clothing accessories not knitted or crocheted. Additional U.S. Note 2 to Chapter 62, HTSUSA, states:

For the purposes of subheadings 6201.92.15, 6201.93.30, 6202.92.15, 6202.93.45, 6203.43.15, 6203.43.35, 6204.63.12, 6204.63.30 and 6211.20.15, 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. (Emphasis added)

Customs has ruled on several occasions that where a claim for water resistance is made, the entire garment must be water resistant, excluding any features on the jacket which are determined to be mere trimming. If a situation exists where non-water resistant portions of the garment are:

1. considered to serve important functions; or 2. contribute to the garment's character; or 3. cover a significant surface area(s) of the garment,
those portions of the garment are considered beyond mere trimming and the garment is precluded from classification as a water resistant garment.

This is clearly evidenced by the determinations in both HQ 951756, dated June 15, 1993, and Headquarters Ruling Letter (HRL) 087964, dated December 20, 1990, which both stated:

[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.

(See also, NY 875557, dated July 7, 1992; NY 870303, dated January 27, 1992; HQ 950185, dated November 13, 1991; HQ 087317, dated February 7, 1991 and NY 853392, dated June 29, 1990, regarding garments with features considered beyond mere trimming and accordingly precluded from classification as water resistant garments)

In the instant case, the fleece hood of the jacket is considered to be more than mere trimming. On a garment such as the submitted jacket, the hood contributes materially to the garment's usefulness and essentially, is an integral part of the garment itself. Thus, your argument that the hood should be ignored as "peripheral" to the jacket, and that as per the terms of Additional U.S. Note 2 to Chapter 62, HTSUSA, only the shell, lining or interlining of the body of the garment should be considered, is not valid. Furthermore, we are of the opinion that a fleece hood cannot be held to the same standard as knit collars, cuffs and waistbands. While the former feature can substantially enhance the practical advantages of purchasing a water resistant garment, the latter, do not. That is to say, a water resistant hood on a water resistant jacket will ensure that the wearer's head will also keep dry during rain, while water resistant features on collars, cuffs and waistbands, do not normally add any additional significant protection.

You make reference to NY 847287 in support of your claim that a water resistant woven jacket with a non-water resistant hood is classifiable under the water resistant provision of Chapter 62, HTSUSA, so long as the body of the garment meets the water resistance requirement of Additional U.S. Note 2 to Chapter 62, HTSUSA. It is important to note that the garment of NY 847287 features a detachable hood and as such, the hood is not considered an essential or integral part of the garment. The hood on the garment in question, on the other hand, is a permanent and significant component of the garment as a whole, which must be included in the classification determination reached by application of Additional U.S. Note 2 to Chapter 62, HTSUSA.

Additionally, you cite a series of rulings (DD 887619, DD 886533, DD 884646, DD 883584, HO 862557, DD 862195, DD 865069, DD 873401, DD 884583, DD 884798, HO 886550, DD 886921, DD 888403, HO 886878), issued to your client, as further proof that water resistant garments with non-water resistant hoods have been consistently classified by Customs as water resistant garments. We have closely examined these District Decisions and have found that in each of these rulings there was either no clear description of the construction of the hood, or no mention of the hood. Furthermore, no clear determination was made in these cases as to whether the garment was conclusively water resistant.

As you have submitted to us a liquidation pattern clearly showing that this merchandise has been imported by your client for at least a two year period under the water resistant provision, we acknowledge that a practice has been established. Thus, the above classification determination, i.e., that on a water resistant garment the permanently attached hood must also be water resistant for the entire garment to be classified as such, constitutes a change in practice. Accordingly, pursuant to 19 CFR 177.10(c), Customs will publish notice of this change in practice in the Federal Register. Before adopting this proposed change, consideration will be given to any written comments timely submitted in response to publication of the document.

As this constitutes a change in practice, in the interim, as timely comments are received and reviewed, and until a final determination is made, the subject man's reversible hooded jacket, style number 8620, will be classified in heading 6201, HTUSA, as a water resistant garment.


John Durant, Director Commercial Rulings Division

Previous Ruling Next Ruling

See also: