OT:RR:CTF:FTM H300642 YAG
Port Director
U.S. Customs and Border Protection
Port of Los Angeles/Long Beach
301 E. Ocean Blvd., Suite 1400
Long Beach, CA 90802
Attn: Kristen Tessenear, Supervisory Import Specialist
RE: Application for Further Review of Protest No. 2704-15-100401; Women’s Jackets
Dear Port Director:
This is in reference to the Application for Further Review (“AFR”) of Protest No. 2704-15-100401, dated March 24, 2015, and filed by Sharretts, Paley, Carter and Blauvelt, P.C., on behalf of Fleet Street Ltd. (“Fleet Street” or “Protestant”), contesting U.S. Customs and Border Protection (“CBP”) classification of women’s jackets (Styles G8021, G8021X, G8021W, G8021NR, and G8021T) under subheading 6202.93.50, Harmonized Tariff Schedule of the United States (“HTSUS”).
FACTS:
This AFR concerns the classification of women’s quilted, man-made, woven garments (Styles G8021, G8021X, G8021W, G8021NR, and G8021T) that were entered in subheading 6202.93.45, HTSUS, as water resistant women’s jackets. Subheading 6202.93.45, HTSUS, provides for “Women’s or girl’s 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 (included padded, sleeveless jackets): Of man-made fibers: Other: Other: Other: Water resistant.”
The instant garments were rate advanced and liquidated by the Port of Long Beach in subheading 6202.93.50, HTSUS, which provides for “Women’s or girl’s 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 (included padded, sleeveless jackets): Of man-made fibers: Other: Other: Other: Other.” The rate advance was based on a water resistant analysis conducted by CBP’s Laboratory and Scientific Services (“CBP Laboratory”) in Los Angeles on jacket Style G8021X, subject to Protest No. 2704-15-101516. Although the jacket (Style G8021X) was quilted in a diamond pattern, CBP did not request unquilted fabric swatches from the protestant for testing. As a result, the jacket failed to meet the water resistant test, and entries of Style G8021X and similar styles were reclassified.
In its AFR request, counsel for protestant enclosed an unquilted swatch of identical fabric for CBP’s analysis. In her email, dated November 3, 2016, counsel for protestant confirmed that the fabric swatch submitted for testing was of the same composition (fiber content and type), and from the same supplier as the fabric used to construct the jackets imported into the United States on protest. This sample, a solid-colored, woven fabric, was sent to CBP Laboratory in New York for testing. The CBP Laboratory Report No. NY20161227 indicated that the sample met the requirements for water resistance as specified in Additional U.S. Note 2 to Chapter 62.
ISSUE:
What is the proper tariff classification of the women’s jackets at issue (Styles G8021, G8021X, G8021W, G8021NR, and G8021T) under the HTSUS?
LAW AND ANALYSIS:
Classification decisions under the HTSUS are made in accordance with the General Rules of Interpretation (“GRIs”). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative section or chapter notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs 2 through 6 may then be applied in order. Pursuant to GRI 6, classification at the subheading level uses the same rules, mutatis mutandis, as classification at the heading level.
The 2015 HTSUS provisions under consideration are the following:
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 (con.):
* * *
6202.93 Anoraks (including ski-jackets), windbreakers and similar articles (including padded, sleeveless jackets) (con.):
Of man-made fibers:
Other:
Other:
* * *
6202.93.45 Other:
Water resistant
* * *
6202.93.50 Other:
Additional U.S. Note 2 to Chapter 62, HTSUS, states as follows:
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.
As a preliminary matter, this AFR only concerns the issue of whether these jackets are properly classified, at the 8-digit level, as water resistant garment or not (the difference between subheadings 6202.93.45, HTSUS, and 6202.93.50, HTSUS). Since the dispute as 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.
With regard to the testing required under Additional U.S. Note 2 to Chapter 62, HTSUS, in Headquarters Ruling Letter (“HQ”) 085974, dated December 28, 1989, CBP has previously presented the procedural requirements necessary for such water resistant testing and addressed the issue of whether a garment’s seams affect the test, as follows:
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. 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). If the test is performed on more than one section of fabric and one section passes but another section does not, the garment will not be considered to have complied with the requirements of Note 2.
Furthermore, in HQ 956258, dated August 4, 1994, CBP stated:
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).
Subsequently, in HQ 956258, CBP addressed the criteria for determining whether a swatch is an identical fabric, stating:
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.
HQ 956258 and HQ 085974 require that, upon request, the protestant submit swatches of “identical fabric” to CBP for testing when the garment does not contain an eight-inch square section without seams. Based on CBP’s position in HQ 956258 and HQ 085974, we find that CBP erred when it did not attempt to obtain a swatch of identical fabric for water resistance testing. The subject garment was quilted in a diamond pattern which rendered it insufficient for testing. Protestant asserts that the merchandise at issue is water resistant within definition contained in Additional U.S. Note 2 to Chapter 62, HTSUS; and, therefore, the subject garments should be classified in subheading 6202.93.45, HTSUS. We agree. In its AFR request, protestant enclosed an unquilted swatch of identical fabric for CBP’s analysis. Protestant confirmed that the fabric swatch submitted for testing was of the same composition (fiber content and type), and from the same supplier as the fabric used to construct the jackets imported into the United States on protest. This sample, a solid-colored, woven fabric, was sent to CBP Laboratory in New York for testing. The CBP Laboratory Report No. NY20161227 indicated that the sample met the requirements for water resistance as specified in Additional U.S. Note 2 to Chapter 62. Accordingly, based on the information submitted, women’s jackets at issue are classified in subheading 6202.93.45, HTSUS.
HOLDING:
You are instructed to GRANT the protest. The garments at issue are classifiable in subheading 6202.93.45, HTSUS, which provides for “Women’s or girl’s 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 (included padded, sleeveless jackets): Of man-made fibers: Other: Other: Other: Water resistant.” The 2015 column one, general duty rate is 7.1 % ad valorem.
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,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division