OT:RR:CTF:FTM H303912 CDM
Port Director
Port of Charleston
U.S. Customs and Border Protection
200 East Bay Street
Charleston, SC 29401
RE: Application for Further Review of Protest No. 1601-11-100325; Classification of Boys’ and Girls’ Jackets and Pants
Dear Port Director:
This is in reference to the Application for Further Review (“AFR”) of Protest No. 1601-11-100325 (“Protest”), timely filed on October 11, 2011, by Outerstuff, Inc. (“Protestant” or “Outerstuff”), contesting U.S. Customs and Border Protection’s (“CBP”) tariff classification of boys’ and girls’ jackets and pants under the Harmonized Tariff Schedule of the United States (“HTSUS”). Protest Number 1601-11-100325 references the following styles of boys’ and girls’ jackets and pants: R-16C1I, R18-14C1I (collectively “C1I”), RQ-14C4R (“C4R”), RH-45DY9 (“DY9”). Our decision is set forth below.
FACTS:
The style descriptions covered in this protest are as follows: C1I are boys’ jackets and pants, and C4R and DY9 are girls’ jackets and pants. Protestant claims all three styles are made of the same material. The C1I style is described as a “zip up hooded jacket and pants set” with a shell fabric of “100% POLY DEWSPO 210T 600MM PU COATED.” See Protest at Exhibit A. The C4R style is described as a “DEWSPO WIND SUIT” with a shell fabric of “100% POLY DEWSPO (600 MM PU COATED).” See Protest at Exhibit A. The DY9 style is described as a “DEWSPO WIND SUIT” with a shell fabric of “100% POLY DEWSPO (600 MM PU COATED).” See Protest at Exhibit A. All the styles of garments at issue in his protest are described as “made of 100% polyester with an inner jersey lining,” and “coated with a plastic material on the inner surface of the outer shell.” The water resistant coating is an application of plastic material on the inner surface of the outer shell.
CBP classified and liquidated jacket styles C1I, C4R, and DY9 in subheading 6201.93.35, HTSUS, as “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: Anoraks (including ski-jackets), windbreakers and similar articles (including padded, sleeveless jackets): Of man-made fibers: Other: Other: Other: Other” and subheading 6202.93.50, HTSUS, as “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: Anoraks (including ski-jackets), windbreakers and similar articles (including padded, sleeveless jackets): Of man-made fibers: Other: Other: Other: Other”.
CBP classified and liquidated pants styles C1I, C4R, and DY9 in subheading 6203.43.40, HTSUS, as “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” and subheading 6204.63.35, HTSUS, as “Women’s or girls’ suits, ensembles, suit-type jackets, blazers, dresses, skirts, divided skirts, 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: Other”.
Protestant asserts that the boys’ and girls’ jackets should be classified as water resistant anoraks in subheading 6201.93.30, HTSUS, as “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: Anoraks (including ski-jackets), windbreakers and similar articles (including padded, sleeveless jackets): Of man-made fibers: Other: Other: Other: Water resistant” and subheading 6202.93.45, HTSUS, as “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: Anoraks (including ski-jackets), windbreakers and similar articles (including padded, sleeveless jackets): Of man-made fibers: Other: Other: Other: Water resistant”.
Similarly, Protestant asserts that the boys’ and girls’ pants should be classified as water resistant in subheading 6203.43.35, HTSUS, as “Men’s or boys’ suits, ensembles, suit-type jackets, blazers, trousers, bib and brace overalls, breeches and shorts (other than swimwear) (con.): Trousers, bib and brace overalls, breeches and shorts: Of synthetic fibers: Other: Other: Other: Water resistant trousers or breeches” and subheading 6204.63.30, HTSUS, as “Women’s or girls’ suits, ensembles, suit-type jackets, blazers, dresses, skirts, divided skirts, 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: Water resistant trousers or breeches.”
ISSUE:
What is the tariff classification of the boys’ and girls’ outerwear jackets and pants of Outerstuff styles C1I, C4R and DY9?
LAW AND ANALYSIS:
We first 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 of the entry. See 19 U.S.C. § 1514(c)(3).
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (“GRI”). 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 GRI 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 2010 HTSUSA provisions under consideration are the following:
6201: Men’s or boy’s 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):
6201.93: Of man-made fibers:
Other:
Other:
Other:
6201.93.3000: Water resistant
6201.93.3521: Other Boys’
* * * * *
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:
Anoraks (including ski-jackets), windbreakers and similar articles (including padded, sleeveless jackets):
6202.93: Of man-made fibers:
Other:
Other:
Other:
6202.93.4500: Water resistant
6202.93.5021 Other Girls’
* * * * *
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 fibers:
Other:
Other:
Other:
6203.43.35: Water resistant trousers or breeches
6203.43.3590: Other
6203.43.40: Other
Trousers and breeches
Boys’
6203.43.4020: Other
* * * * *
6204: Women’s or girls’ suits, ensembles, suit-type jackets, blazers, dresses, skirts, divided skirts, trousers, bib and brace overalls, breeches and shorts (other than swimwear):
Trousers, bib and brace overalls, breeches and shorts:
6204.63: Of synthetic fibers:
Other:
Other:
Other:
Other:
6204.63.30: Water resistant trousers or breeches
6204.63.3090: Other
6204.63.35: Other
Trousers and breeches
Girls’
6203.43.3530: Other
* * * * *
Additional U.S. Note 2 to Chapter 62 HTSUS provides:
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.
Therefore, the HTSUS provides a two-part test for water resistance, whereby a garment (1) must have an application of rubber or plastics and (2) must pass the water resistant rain test, which requires that a garment have no more than one gram of water penetration when subjected to a water pressure of 600 mm for two minutes. Tests are normally conducted on three eight-inch squares of fabric. The CBP laboratories conduct the water resistant test.
The instant garments were entered in subheadings 6201.93.30, 6202.93.45, 6203.43.35, and 6204.63.30, HTSUS, as water-resistant garments. They were rate advanced and liquidated by the Port of Charleston (“Port”) in subheadings 6201.93.35, 6202.93.50, 6203.43.40, and 6204.63.35, HTSUS, as other (i.e., non-water resistant) garments.
The Port rate advanced style C1I based on CBP laboratory report SV20101551 for style EMN, which is not at issue in this protest. Style EMN is from the same manufacturer and importer, taken from a different entry. CBP laboratory report SV20101551 for style EMN found that the garment was not water resistant. However, style EMN is not representative of the styles at issue in this Protest. In addition, the Port rate advanced styles C4R and DY9 based on a CBP laboratory report for style C32, which is also not at issue in this Protest, but also from the same manufacturer and importer, taken from a different entry. Those CBP laboratory reports SV20110618 and SV20110619 for style C32 found the garment was water resistant. Style C32 is representative of the styles at issue in this Protest.
CBP’s position with regard to applying test results of a single sample to other shipments from the same importer was set forth in Headquarters Ruling Letter (“HQ”) 083879, dated July 2, 1990, which held that if the shipment from which the sample is obtained is from the same manufacturer, has the same style number, costs the same, has the same information on the invoice as another shipment, and the second shipment is imported a very short time after the first, it is safe to assume that the merchandise is the same for both shipments.
While a single result will never be applied indefinitely given the potential changes to products and hence the likely changes from shipment to shipment, lab results from a single sample have been applied to entries made up to one year after the tested shipment. With respect to the application of testing results for water resistance to different shipments, CBP stated in HQ 956258, dated August 4, 1994, that “at the responsible import specialist’s discretion, the testing results for water resistance 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.” See also HQ 951756, dated June 15, 1993.
In the instant case, however, the entries for style C1I were rate advanced based upon the results of CBP laboratory tests conducted in Savannah on style EMN, referenced in CBP’s Laboratory report SV20101551. The laboratory analysis found that the fabric was not water resistant. However, the sample of style EMN was taken from a different entry than the one at issue, and the style number, cost, and invoice were all different. The description and analysis of the style EMN by the CBP laboratory in Savannah also clearly illustrates that style EMN is not “identical merchandise” to style C1I pursuant to the above rulings. Style EMN is described in the laboratory report as a jacket “with an outer shell composed of both knit and woven fabrics. The majority of the front and back panels and sleeves of the outer shell of the jacket is a knit fleece fabric composed wholly of polyester. The woven portion of the outer shell is composed wholly of polyester and consists of the back yoke, the upper chest, a small piece surrounding the armhole in both the front and back, and a small portion that extends from the elbow to the wrist on the underside of the forearm. No application or coating was detected on any part of the outer shell. The inner lining is woven and composed wholly of polyester. An application of a rubber/plastic material was detected on the inner surface of the inner lining.” In contrast, all the styles at issue in the current protest are described as made of 100% polyester with an inner jersey lining and coated with a plastic material on the inner surface of the outer shell. Style EMN is therefore constructed of a different fabric than C1I, and style C1I has a plastic coating on the outer shell of the jacket as opposed to the inner lining. Therefore, based on the laboratory results of style C1I, CBP’s classification and liquidation of boys’ jackets and pants, style C1I in subheadings 6201.93.35 and 6203.43.40, HTSUS, was incorrect.
Moreover, the Port rate advanced styles C4R and DY9 based on a CBP laboratory report for style C32, which is not at issue in this protest, from the same manufacturer and importer. Although style C32 is allegedly made of the same material as the styles at issue in this protest, it is unnecessary to conduct that analysis or rely on laboratory reports SV20110618 and SV20110619 for style C32 because we can rely on CBP laboratory reports for C1I, which is one of the styles at issue in this protest.
Samples of style C1I were taken from different shipments, and the CBP Laboratory in New York concluded in four different reports—NY20112249 (boys’ jacket), NY20120024 (boys’ pants), NY20112275 (kids’ jacket), and NY20120026 (boys’ pants)—that the samples of style C1I were all water resistant pursuant to the requirements of Additional U.S. Note 2 to Chapter 62. Two different samples of the style C1I pants are described in their respective NY Laboratory Reports as follows: “a boy’s woven pant, style RJ14C1I . . . composed of an outer woven shell fabric and inner knit lining fabric . . . . The outer woven shell fabric is constructed wholly of polyester fibers and have an application of a plastic/rubber material,” and as “a boy’s size 3T woven pants. The sample is constructed of a woven shell fabric and a knit lining fabric. The woven shell fabric has an application of a plastic/rubber material . . . . and meets the water resistance requirements as specified in HTSUS Chapter 62, Additional U.S. Note 2.”
No samples of styles C4R or DY9 were tested by the CBP laboratory; however, Protestant claimed and provided documentation in its Protest that styles C4R and DY9 are the same construction as style C1I, see Protest at Exhibit A (product specifications), which was tested by the CBP laboratory in New York and found to be water resistant pursuant to the requirements of Additional U.S. Note 2 to Chapter 62, see NY20112249, NY20120024, NY20112275, and NY20120026. The material specifications for all the styles at issue in this Protest are the same as the NY laboratory reports that found style C1I water resistant.
Specifically, the technical specifications and composition of styles C1I, C4R and DY9 are identical as “100% POLY DEWSPO” with a 600 mm polyurethane coating and an inner jersey lining. The exact sizing and color/design patterns varies, but the fabric construction is identical. Therefore, the technical specifications of styles C1I, C4R and DY9 support the Protestant’s claim that “[t]hese styles are all made from the exact same material.” We rely on the CBP laboratory results that style C1I is water resistant to determine that the styles C1I, C4R and DY9 satisfy the criteria of water resistance of Additional U.S. Note 2 to Chapter 62. Protestant also submitted an independent laboratory report covering the styles at issue—C1I, C4R, and DY9—and indicating that the fabric tested is water-resistant. See Protest at Exhibit E. However, we do not rely on the independent laboratory report for our decision because we relied on the CBP laboratory reports. In addition, we note that the Protestant’s lab reports were conducted by a foreign laboratory in May 2010 prior to the importation of the garments at issue.
Accordingly, based on CBP’s laboratory results of style C1I and documentation that styles C1I, C4R and DY9 are all made from the same material, CBP’s classification and liquidation jackets and pants of styles C1I, C4R and DY9 in subheadings 6201.93.3521, 6202.93.5021, 6203.43.4020, and 6204.63.3530, HTSUSA, was incorrect.
HOLDING:
The boys’ and girls’ jackets are classified in subheading 6201.93.3000, HTSUSA, as “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: Anoraks (including ski-jackets), windbreakers and similar articles (including padded, sleeveless jackets): Of man-made fibers: Other: Other: Other: Water resistant” and subheading 6202.93.4500, HTSUSA, as “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: Anoraks (including ski-jackets), windbreakers and similar articles (including padded, sleeveless jackets): Of man-made fibers: Other: Other: Other: Water resistant”.
The boys’ and girls’ pants are classified in subheading 6203.43.3590, HTSUSA, as “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” and subheading 6204.63.3090, HTSUSA, as “Women’s or girls’ suits, ensembles, suit-type jackets, blazers, dresses, skirts, divided skirts, 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: Water resistant trousers or breeches; Other.”
You are instructed to GRANT the Protest in full.
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