OT:RR:CTF:FTM H288404 YAG/MJD
TARIFF NO: 6202.13, 6201.13, 6203.43, 6202.93, 6201.93
Port Director
U.S. Customs and Border Protection
Port of Savannah, Georgia
1 East Bay Street
Savannah, GA 31401
Attn: Kristen Tessenear, Supervisory Import Specialist
RE: Application for Further Review of Protest No. 1703-16-100434; Girls’ Jackets and Boys’ Jackets and Pants
Dear Port Director:
This is in reference to the Application for Further Review (“AFR”) of Protest No. 1703-16-100434, dated November 28, 2016, filed on behalf of The Children’s Place Services Company LLC (“the Children’s Place” or “Protestant”) by Sharretts, Paley, Carter & Blauvelt, P.C. (“Counsel”). Protestant contests the classification and liquidation by U.S. Customs and Border Protection (“CBP”) of girls’ jackets (Styles 2048217, 2048258, and 2052730) under subheading 6202.13.40 of the Harmonized Tariff Schedule of the United States (“HTSUS”); boys’ jackets (Style 2048021) under subheading 6201.13.40, HTSUS; and, boys’ pants (Styles 2047666, 2044523, 2045686, and 2045652) under subheading 6203.43.40, HTSUS. Protestant asserts that the upper body garments should be classified as water resistant anoraks in subheadings 6202.93.45 and 6201.93.30, HTSUS, respectively, and the pants should be classified as water resistant in subheading 6203.43.35, HTSUS.
FACTS:
The subject protest and AFR involves six entries of merchandise. The merchandise is described as follows:
Girls’ Jackets (Styles 2048217, 2048258, and 2052730)
Style 2048217 is a hip-length puffer jacket constructed from a 100 percent woven polyester shell fabric quilted to a nonwoven polyester batting. The body and hood are lined with a knit polyester micro fleece, and the sleeves are lined with 100 percent woven polyester taffeta. The shell is coated with a poly acrylic (“PA”) coating. The jacket features a full frontal opening secured by a zipper closure, a faux fur-trimmed hood, side-seam pockets, long sleeves, and elastic tightening at the hem. The jacket sleeves contain double rows of narrowly spaced quilt stitching which provides tightening near the wrists. A sample of the merchandise was forwarded to the CBP Laboratories and Scientific Services Directorate (“CBP Laboratory”) for examination. CBP Laboratory Report SV20170471, dated April 4, 2017, indicates that this jacket meets the requirements for water resistance, as specified in Additional U.S. Note 2, Chapter 62, HTSUS.
Style 2048258 is a hip-length puffer jacket constructed from a 100 percent woven satin polyester shell fabric quilted to a nonwoven polyester batting. The body and hood are lined with a knit polyester micro fleece and the sleeves are lined with 100 percent woven polyester taffeta. The jacket features a full frontal opening with a zipper closure covered by decorative bows which fasten over the front opening with hook and loop tape. The jacket also features a hood, side-seam pockets, long sleeves, and elastic tightening at the wrists and hem. Similar to Style 2048217, a sample of the merchandise was forwarded to the CBP Laboratory for examination. CBP Laboratory Report SV20170472, dated April 4, 2017, indicates that this jacket meets the requirements for water resistance, as specified in Additional U.S. Note 2, Chapter 62, HTSUS.
Style 2052730 is a hip-length puffer jacket constructed from a 100 percent woven polyester shell fabric quilted to a nonwoven polyester batting. The body and hood are lined with a knit polyester micro fleece and the sleeves are lined with 100 percent woven polyester taffeta. The jacket has a full frontal opening with a zipper closure, side-seam pockets, long sleeves, and elastic tightening at the wrists and hem. The CBP Laboratory tested two samples of this style for water resistance and both samples met the requirements for water resistance, as specified in Additional U.S. Note 2, Chapter 62, HTSUS. See CBP Laboratory Report SV20170467, dated April 4, 2017, and CBP Laboratory Report SV20170468, dated April 4, 2017.
Boys’ Jackets (Style 2048021)
CBP did not receive a sample of boys’ jacket, Style 2048021 for examination. Instead, we used a sketch provided by Protestant and a cached internet page of Style 2048021 to classify the jacket. According to the Children’s Place cached internet page, Style 2048021 is a hip-length puffer jacket constructed from a 100 percent woven polyester shell fabric quilted to a nonwoven polyester batting. The body and hood are lined with a knit polyester micro fleece and the sleeves are lined with 100 percent woven polyester taffeta. The jacket features a full frontal opening with a zipper closure, a hood, long sleeves with elastic wrists, elastic tightening at the hem and pockets. Since CBP did not have a sample of Style 2048021 to test for water resistance, Protestant provided a report for our review, prepared by a third-party laboratory, Intertek, located in South Korea. Pursuant to Intertek’s Laboratory Report KORT15051266, dated June 11, 2015, Style 2048021 passed the water resistant test, using AATCC 35-2013 method. Three fabric samples were tested and 0.0 grams of water were detected. We note that the fabric used to construct Style 2048021 was sourced from Sam Hwan, and none of the other samples tested by CBP were made from fabric produced in this mill.
Boys’ Pants (Styles 2047666, 2044523, 2045686, and 2045652)
Style 2047666 is a pair of boys’ pants (color tidal) constructed from an outer shell of 100 percent woven polyester fabric, with a 60 percent cotton and 40 percent polyester knit fabric lining. The pants feature an elastic drawstring waistband, side-seam pockets, a contrasting colored piping detail down the outer side seams, and hemmed leg openings. A sample of the merchandise was forwarded to the CBP Laboratory for examination. CBP Laboratory Report SV20170450, dated March 24, 2017, states that Style 2047666 pants do not meet the requirements for water resistance, as specified in Additional U.S. Note 2, Chapter 62, HTSUS.
Style 2044523 is a pair of boys’ pants constructed from an outer shell of 100 percent woven polyester fabric, with a 60 percent cotton and 40 percent polyester knit fabric lining. The pants feature an elastic drawstring waistband, side-seam pockets, a contrasting colored piping detail down the outer side seams, and hemmed leg openings. The CBP Laboratory tested two samples of this style for water resistance, one sample in the color redwood and another sample in the color tidal. Both samples failed to meet the requirements for water resistance as specified in Additional U.S. Note 2, Chapter 62, HTSUS. See CBP Laboratory Report SV20170451, dated April 4, 2017, and CBP Laboratory Report SV20170452, dated April 4, 2017.
Style 2045686 is a pair of boys’ pants (color black) constructed from an outer shell of 100 percent woven polyester fabric, with a 60 percent cotton and 40 percent polyester knit fabric lining. The pants feature an elastic waistband with a non-functioning drawstring, side-seam pockets, a contrasting colored piping detail down the outer side seams, and hemmed leg openings. Pursuant to the CBP Laboratory Report SV20170449, dated March 24, 2017, the Style 2045686 pants passed the water resistance test, as specified in Additional U.S. Note 2, Chapter 62, HTSUS.
Style 2045652 is a pair of boys’ woven pants constructed from an outer shell of 100 percent polyester fabric, with a 60 percent cotton and 40 percent polyester knit fabric lining. The pants feature an elastic waistband with a non-functioning drawstring, a contrasting colored piping detail down the outer side seams, and hemmed leg openings. Since CBP did not receive a sample of Style 2045652, the only laboratory analysis that we have is the one provided by Protestant. According to Intertek Laboratory Report KORT15040131, dated May 14, 2015, Style 2045652 pants passed the water resistant test using AATCC 35-2013 method. Three fabric samples were tested, and 0.0 grams of water were detected. Styles 2045652 and 2045686 are sourced from the same mill, Huzhou Jingwei, and are constructed from the same fabric.
ISSUE:
What is the tariff classification of the subject girls’ jackets and the boys’ pants and jackets?
LAW AND ANALYSIS:
Initially, we note that the matter is protestable under 19 U.S.C. § 1514(a)(2) as a decision on classification. The protest was timely filed within 180 days of liquidation for entries made on or after December 18, 2004 (Miscellaneous Trade and Technical Corrections Act of 2004, Pub.L. 108-429, § 2103(2)(B)(ii), (iii) (codified as amended at 19 U.S.C. § 1514(c)(3) (2006)).
Further Review of Protest No. 1703-16-100434 is properly accorded to Protestant pursuant to 19 C.F.R. § 174.24(a) because the decision against which the protest was filed is alleged to be inconsistent with a decision made at any port with respect to the same or substantially similar merchandise.
Merchandise imported into the United States is classified under the HTSUS. Tariff classification is governed by the principles set forth in the General Rules of Interpretation (“GRIs”) and, in the absence of special language or context which requires otherwise, by the Additional U.S. Rules of Interpretation (“AUSRI”). The GRIs and the Additional U.S. Rules of Interpretation are part of the HTSUS and are to be considered statutory provisions of law for all purposes. GRI 1 requires that classification be determined first according to the terms of the headings of the tariff schedule and any relative section or chapter notes and, unless otherwise required, according to the remaining GRIs taken in their appropriate order. GRI 6 requires that the classification of goods in the subheadings of headings shall be determined according to the terms of those subheadings, any related subheading notes and, mutatis mutandis, to GRIs 1 through 5.
The 2015 HTSUS headings under consideration are the following:
6201 Men’s or boys’ overcoats, carcoats, capes, cloaks, anoraks (including ski-jackets), windbreakers and similar articles (including padded, sleeveless jackets), other than those of heading 6203.
Overcoats, carcoats, capes, cloaks and similar coats:
6201.13 Of man-made fibers:
Other:
6201.13.40 Other…
****
Anoraks (including ski-jackets), windbreakers and similar
articles (including padded, sleeveless jackets):
6201.93 Of man-made fibers:
Other:
Other:
Other:
6201.93.30 Water resistant…
****
6202 Women’s or girls’ overcoats, carcoats, capes, cloaks, anoraks (including ski-jackets), windbreakers and similar articles (including padded, sleeveless jackets), other than those of heading 6204:
Overcoats, carcoats, capes, cloaks and similar coats:
6202.13 Of man-made fibers:
Other:
6202.13.40 Other…
****
Anoraks (including ski-jackets), windbreakers and similar articles (including padded, sleeveless jackets):
6202.93 Of man-made fibers:
Other:
Other:
Other:
6202.93.45 Water resistant…
****
6203 Men’s or boys’ suits, ensembles, suit-type jackets, blazers, trousers, bib and brace overalls, breeches and shorts (other than swimwear):
Trousers, bib and brace overalls, breeches and shorts:
6203.43 Of synthetic fiber:
Other:
Other:
Other:
6203.43.35 Water resistant trousers or breeches…
6203.43.40 Other…
****
Additional U.S. Note 2 to Chapter 62, HTSUS, states, in pertinent part:
For the purposes of subheadings 6201.92.15, 6201.93.30, 6202.92.15, 6202.93.45, 6203.41.05, 6203.43.15, 6203.43.35, 6204.61.10, 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.
Water Resistance – Jackets
First we address the matter of water resistance for the girls’ and boys’ jackets. Protestant argues that the girls’ jackets (Styles 2048217, 2048258, and 2052730) and boys’ jackets (Style 2048021) are water resistant anoraks and classifiable in subheading 6202.93.45, HTSUS, and 6201.93.30, HTSUS, respectively. Since the CBP Laboratory found that all three styles of girls’ jackets passed the water resistance test specified in Additional U.S. Note 2, Chapter 62, HTSUS, they will be classified as water resistant jackets.
CBP did not receive a sample of the boys’ jackets, Style 2048021. Therefore, CBP relied on the laboratory results, submitted by Protestant, of the water resistance test performed by the third-party laboratory, Intertek. Intertek found that Style 2048021 passed the water resistance test using AATC 35-2013 by taking three samples from the jacket where 0.0 grams of water were detected. Furthermore, Style 2048021 is the only sample tested by the CBP Laboratory made from fabric sourced from Sam Hwan mill. Thus, there exist no sample that CBP can compare Style 2048021 to for accuracy. As a result, CBP will accept the results of the water resistance test performed by Intertek. Therefore, the boys’ jackets, Style 2048021, is considered a water resistant jacket under Additional U.S. Note 2, Chapter 62, HTSUS.
Classification – Jackets
Having determined that the jackets are water resistant, we next turn to whether the jackets are anoraks. The term anorak is not defined in the HTSUS, legal notes, or ENs. A tariff term that is not defined in the HTSUS is construed in accordance with its common and commercial meaning. Nippon Kogasku (USA), Inc. v. United States, 69 C.C.P.A. 89, 673 F.2d 380 (1982). Common and commercial meaning may be determined by consulting dictionaries, lexicons, scientific authorities and other reliable sources. C.J. Tower & Sons v. United States, 69 C.C.P.A 128, 673 F.2d 1268 (1982). The Oxford English dictionary defines an anorak as “a weatherproof jacket of skin or cloth, with hood attached, worn by the Inuit in Greenland; a similar garment elsewhere.” CBP has found that its commercial definition is “[a] hip-length hooded sport jacket ideal for inclement weather. This jacket was originally worn by Eskimos and later adapted for use in WWII before becoming a popular design for everyday wear.” See Headquarters Ruling Letter (“HQ”) H080601, dated January 14, 2010.
In HQ 081134, dated April 27, 1989, CBP described the features of anoraks in comparison to parkas as the following:
Anoraks have many features in common with parkas; however, they differ in regards to the length of the garment. The length of an anorak can vary from waist length to mid- thigh only. Anoraks must have a hood, which can be concealed in the collar; a complete opening at the front fastened by a zipper or velcro; a lining quilted or padded, a drawstring or other means of tightening; close-fitting elasticized sleeve-ends; collar and pockets. If the length of the garment is longer than mid-thigh and yet has the features described above, it will nevertheless be considered a parka and classifiable under the provisions for overcoats, car-coats, capes, cloaks and similar articles.
HQ 081134 also explained the term “and similar articles” in relation to anoraks in heading 6202, HTSUS, as follows:
The term “similar articles” in relation to anoraks, includes garments, which have the features of an anorak except for either a hood or a lining. These similar articles include garments defined as anoraks, which have only a partial opening and fastening device at the front.
The classification of anoraks and “similar articles” in relation to anoraks has been addressed in several CBP rulings. In HQ 953467, dated June 2, 1993, CBP explained that anoraks, like parkas, were for those partaking in outdoor sports or for those who prefer a casual styled outerwear. They also found that anoraks are oftentimes described as jackets, can be water resistant, and are typically mid-thigh and lower-thigh length, but can be the same length as a coat, which is usually longer. See HQ H080601. In HQ 958131, dated November 9, 1995, CBP explained that while anoraks exhibit fundamental features, the same is not true for anorak-like garments that qualify as “similar articles” in heading 6202, HTSUS. These “similar articles” usually include garments that have the same features of anoraks apart from either a hood or lining.
Lastly, CBP’s Informed Compliance Publication (“ICP”) on the Classification of Coated and Water Resistant Apparel, which Protestant cites to, list several factors that distinguish coats and anoraks. The ICP offers guidance and is not legally binding. Below is how the ICP describes the difference between a coat-like garments and anorak-like garments:
Coat-Like Anorak-Like
No tightening at waist or wrists Tightening at waist and/or wrists
Full-cut Slimmer cut
No quilting on outershell A hood, particularly if prominent
Button closures Zipper closure, partial front opening
Slash pockets Patch pockets, especially bellows
In the instant case, the girls’ and boys’ jackets have many anorak features. They are all hip-length puffer jackets with hoods, they have full frontal openings with a zipper closure, a padded lining, side-seam pockets, and are water resistant. Style 2052730 and Style 2048258 have elastic tightening at the wrist and hem, while Style 2048217 has elastic tightening at the hem, and sleeves that contain double rows of narrowly spaced quilt stitching which provides for tightening near the wrist. The boys’ jackets, Style 2048021, has long sleeves with elastic wrists, and elastic tightening at the hem. The jackets, however, do not have a collar and therefore the hood of the jackets cannot be concealed in the collar as required to be classified as an anorak. Nonetheless, the jackets have many of the features of an anorak, and while there is no exact number of criteria a jacket must have to be considered a “similar article” in relation to an anorak or “anorak-like” under heading 6202, HTSUS, the jackets in this case have a majority of the criteria mentioned above.
Based on the aforementioned, we find that the girls’ and boys’ jackets in this case are classifiable as “similar articles” in relation to anoraks under heading 6202, HTSUS. Therefore, the three style of girls’ jackets, Styles 2048217, 2048258, and 2052730 are classified as water resistant jackets similar to anoraks under subheading, 6202.93.45, HTSUS, which provides for “Women’s and girls’ overcoats, carcoats, capes, cloaks, anoraks (including ski-jackets), windbreakers and similar articles (including padded, sleeveless jackets), other than those of heading 6204: Anoraks (including ski-jackets), windbreakers and similar articles (including padded, sleeveless jackets): Of man-made fibers: Other: Other: Other: Water Resistant.” The boys’ jackets, Style 2048021, are classified as water resistant jackets similar to anoraks under subheading, 6201.93.30, HTSUS, which provides for “Men’s and boys’ overcoats, carcoats, capes, cloaks, anoraks (including ski-jackets), windbreakers and similar articles (including padded, sleeveless jackets), other than those of heading 6203: Anoraks (including ski-jackets), windbreakers and similar articles (including padded, sleeveless jackets): Of man-made fibers: Other: Other: Other: Water resistant.”
Classification - Pants
As a preliminary matter, the tariff classification of boys’ pants concerns the issue of whether these pants are properly classified, at the 8-digit level, as water resistant pants or not (the difference between subheadings 6203.43.35, HTSUS, and 6203.43.40, HTSUS). Since the dispute is to the proper 8-digit national tariff rate, GRI 6 applies. GRI 6 states:
For legal purposes, the classification of goods in the subheadings of a heading shall be determined according to the terms of those subheadings and any related subheading notes and, mutatis mutandis, to the above rules on the understanding that only subheadings at the same level are comparable. For the purposes of this rule, the relative section, chapter and subchapter notes also apply, unless the context otherwise requires.
Protestant asserts that the pants at issue are water resistant within the definition contained in Additional U.S. Note 2 to Chapter 62, HTSUS; and, therefore, the subject pants should be classified in subheading 6203.43.35, HTSUS. We agree, in part. In its AFR request, Protestant provided samples of Style 2047666, Style 2044523, and Style 2045686 to CBP for examination and testing. The CBP Laboratory found that Style 2045686 passed the water resistance test of Additional U.S. Note 2 to Chapter 62, and Style 2044523 and Style 2047666 did not.
CBP did not receive a sample of Style 2045652; however, according to Intertek Laboratory Report KORT15040131, Style 2045652 passed the water resistance test using AATC 35-2013. Three fabric samples were tested and 0.0 grams of water were detected. We note that the fabric for Style 2045652 is of the same construction and sourced from the same mill as Style 2045686 which passed the water resistance test performed by the CBP Laboratory. Since the two styles were sourced from the same fabric sourced from the same mill, we will apply the laboratory test results for Style 2045686 to Style 2045652.
Therefore, Styles 2045652 and 2045686 meet the requirement of Additional U.S. Note 2 to Chapter 62, HTSUS, and will be classified under 6203.43.35, HTSUS, which provides for “Men’s or boys’ suits, ensembles, suit-type jackets, blazers, trousers, bib and brace overalls, breeches and shorts (other than swimwear): Trousers, bib and brace overalls, breeches and shorts: Of synthetic fibers: Other: Other: Other: Water resistant trousers or breeches.” Styles 2044523 and 2047666 will be classified under 6203.43.40, HTSUS, which provides for “Men’s or boys’ suits, ensembles, suit-type jackets, blazers, trousers, bib and brace overalls, breeches and shorts (other than swimwear): Trousers, bib and brace overalls, breeches and shorts: Of synthetic fibers: Other: Other: Other: Other.”
HOLDING:
By application of GRIs 1 and 6, the girls’ jackets (Styles 2048217, 2048258, and 2052730) are classified under subheading 6202.93.4500, HTSUSA (Annotated), which provides for “Women’s and girls’ overcoats, carcoats, capes, cloaks, anoraks (including ski-jackets), windbreakers and similar articles (including padded, sleeveless jackets), other than those of heading 6204: Anoraks (including ski-jackets), windbreakers and similar articles (including padded, sleeveless jackets): Of man-made fibers: Other: Other: Other: Water resistant.” The 2015 column one, general duty rate is 7.1% ad valorem.
The boys’ jackets (Style 2048021) are classified under subheading 6201.93.3000, HTSUSA, which provides for “Men’s and boys’ overcoats, carcoats, capes, cloaks, anoraks (including ski-jackets), windbreakers and similar articles (including padded, sleeveless jackets), other than those of heading 6203: Anoraks (including ski-jackets), windbreakers and similar articles (including padded, sleeveless jackets): Of man-made fibers: Other: Other: Other: Water resistant.” The 2015 column one, general duty rate is 7.1% ad valorem.
The boys’ pants (Styles 2044523 and 2047666) are classified under subheading 6203.43.4020, HTSUSA, which provides for “Men’s or boys’ suits, ensembles, suit-type jackets, blazers, trousers, bib and brace overalls, breeches and shorts (other than swimwear): Trousers, bib and brace overalls, breeches and shorts: Of synthetic fibers: Other: Other: Other: Other: Trousers and breeches: Boys’: Other.” The 2015 column one, general duty rate is 27.9% ad valorem.
The boys’ pants (Styles 2045652 and 2045686) are classified under subheading 6203.43.3590, HTSUSA, which provides for “Men’s or boys’ suits, ensembles, suit-type jackets, blazers, trousers, bib and brace overalls, breeches and shorts (other than swimwear): Trousers, bib and brace overalls, breeches and shorts: Of synthetic fibers: Other: Other: Other: Water resistant trousers or breeches: Other” The 2015 column one, general duty rate is 7.1% ad valorem.
You are instructed to GRANT the protest in PART, and DENY the protest in PART.
In accordance with Sections IV and VI of the CBP Protest/Petition Processing Handbook (HB 3500-08A, December 2007, pp. 24 and 26), you are to mail this decision, together with the CBP Form 19, to the Protestant no later than 60 days from the date of this letter. Any re-liquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing the decision.
Sixty days from the date of the decision, the Office of Trade, Regulations and Rulings will make the decision available to CBP personnel, and to the public on the Customs Rulings Online Search System (“CROSS”) at https://rulings.cbp.gov/ which can be found on the U.S. Customs and Border Protection website at http://www.cbp.gov and other methods of public distribution.
Sincerely,
Craig T. Clark, Director
Commercial and Trade Facilitation Division