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HQ 956258

August 4, 1994

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.


John Durant, Director

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