OT:RR:CTF:FTM H306016 MJD
Port Director
Port of Charleston
U.S. Customs and Border Protection
200 East Bay Street
Charleston, SC 29401-2611
RE: Application for Further Review of Protest No. 1601-11-100326; Classification of Men’s and Boys’ Jackets
Dear Port Director:
This is in reference to the Application for Further Review (“AFR”) of Protest No. 1601-11-100326 (“Protest”), timely filed on October 11, 2011, by Grunfeld, Desiderio, Lebowitz, Silverman & Klestadt, LLP, on behalf of Outerstuff, Ltd. (“Protestant” or “Outerstuff”), contesting U.S. Customs and Border Protection’s (“CBP”) tariff classification of jacket styles K-4-40EMZ (“EMZ”) and K4-40 EFS (“EFS”) under the Harmonized Tariff Schedule of the United States (“HTSUS”). Our decision is set forth below.
FACTS:
The merchandise under protest concerns jacket styles EMZ and EFS. Protestant describes the jackets as follows:
The goods in this entry consist of woven microfiber and micro fleece jackets comprised of 100% poly microfiber 600MM PU coated. Additionally, there is an inner lining comprised of 100% Poly anti pill micro polar fleece with 100% poly taffeta 190T for lining of protective storm cuff. . . The EMZ style jacket features a full zipper frontal opening that extends to the top of the collar, two on seam pockets below the waist, and elastic cuffs. The EFS style jacket features a full zipper frontal opening that extends to the top of the collar, a zipper pocket on the right chest, two open pockets below the waist, long hemmed sleeves, and a hemmed waistband.
Protestant further claims that jacket styles EMZ and EFS are made of the same fabrics. However, contrary to Protestant’s assertion, styles EMZ and EFS are made from different fabrics. Based on the product specifications provided by Protestant, jacket style EFS appears to be constructed from a 3-layer laminated fabric. The jacket is comprised of an outer layer of 100% poly microfiber 600mm coated fabric bonded to a 100% poly micro polar fleece on the inside. The body is lined with 100% poly micromesh, and the protective storm cuff is lined 100% poly taffeta. Unlike style EFS, style EMZ is described in the product specifications, provided by Protestant, as being constructed from 100% nylon taffeta with a 600mm PU coating. See Protest at Exhibit A.
The CBP laboratory did not test style EMZ, but they did test style EFS via laboratory report No. NY20112274, and provided, in part, the following description regarding jacket style EFS:
The jacket is constructed of a bonded shell fabric and a knit lining fabric. The bonded shell fabric is composed of a woven face fabric bonded to a knit pile backing fabric. The sample is wholly composed of polyester fibers. The sample was not tested for water resistance requirements as the jacket is not classified under HTSUS Chapter 62 as per HQ Ruling 965713.
Outerstuff, however, had third-party laboratories test both style EFS and EMZ for water resistance. Style EFS was tested for water resistance pre-importation via SGS laboratory report No. SH10098998/TX and post-importation via Vartest laboratory report No. A050311D. Both laboratory tests reported style EFS passed the water resistance test as specified in Additional U.S. Note 2, Chapter 62, HTSUS. Style EMZ was only tested post-importation via Vartest laboratory report no. A050311C, which reported that style EMZ passed the water resistance test as specified in Additional U.S. Note 2, Chapter 62, HTSUS.
The instant garments were reclassified by the Port of Charleston via Notice of Action (“CBP Form 29”) due to laboratory analysis of similar merchandise from the same manufacturer. They were reclassified in subheading 6201.93.3511, HTSUSA (annotated), 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: Men’s.”
In its AFR request, Protestant asserts that both jackets should be classified as water resistant anoraks 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.”
ISSUE:
What is the tariff classification of Outerstuff jacket styles EMZ and EFS?
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. (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. 1601-11-100326 was properly accorded to Protestant pursuant to 19 C.F.R. §174.24 because the decision against which the protest was filed is alleged to be inconsistent with a ruling of the Commissioner of Customs or his designee, or with a decision made at any port with respect to the same or substantially similarly merchandise. Specifically, protestant alleges the action of the Port are inconsistent with New York Ruling Letter (“NY”) N152577, dated March 31, 2011; N167956, dated June 14, 2011; Headquarters Ruling Letter (“HQ”) 951756, dated June 15, 1993; HQ 957061, dated March 30, 1995; N176576, dated August 12, 2011; N173955, dated July 28, 2011; N165393, dated June 6, 2011; N160388, dated May 10, 2011; N110495, dated September 13, 2010; N116381, dated August 20, 2010; and, NY C81239, dated November 3, 1997.
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 HTSUS provisions under consideration are the following:
6101: Men’s or boys’ overcoats, carcoats, capes, cloaks, anoraks (including ski-jackets), windbreakers and similar articles, knitted or crocheted, other than those of heading 6103:
6101.30: Of man-made fibers:
Other:
6101.30.20: Other. . .
6101.30.2010: Men’s. . .
6101.30.2020: Boys’. . .
* * * * *
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:
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. . .
6201.93.35 Other. . .
* * * * *
Note 1(c) to Chapter 60, HTSUS, provides:
This chapter does not cover:
. . .
(c) Knitted or crocheted fabrics, impregnated, coated, covered or laminated, of chapter 59. However, knitted or crocheted pile fabrics, impregnated, coated, covered or laminated, remain classified in heading 6001.
Note 1 to Chapter 61 HTSUS provides:
This chapter applies only to made up knitted or crocheted articles.
Note 1 to Chapter 62 HTSUS provides:
This chapter applies only to made up articles of any textile fabric other than wadding, excluding knitted or crocheted articles (other than those of heading 6212).
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.
Classification of the garment, such as style EFS, would typically be based on the fabric of the outer surface of the garment by application of GRI 3. For style EFS that would be the laminated woven fabric of the outer layer of the jacket, classified in heading 5903, HTSUS. Garments made from laminated fabrics of heading 5903, HTSUS, can be classified either under heading 6210, HTSUS, if they are woven fabrics, or heading 6113, HTSUS, if they are knit fabrics. However, GRI 1 requires that we first classify according to the section and chapter notes. Note 1(c) to Chapter 60, HTSUS, states that the chapter does not cover knit fabrics impregnated, coated, covered or laminated of Chapter 59. Note 1(c) does, however, provide an exception for knit pile fabrics that are impregnated, covered or laminated. These fabrics remain in Chapter 60, HTSUS, and are classified in heading 6001, HTSUS. Thus, a knitted pile fabric which is also laminated would remain classified under heading 6001, HTSUSA, while a knitted non-pile fabric laminated with plastic would be classified under heading 5903, HTSUS, as a textile fabric laminated with plastic pursuant to GRI 1. Accordingly, the classification of the garments is dependent on whether or not the fabric is determined to be pile or non-pile knitted fabric. In this case, CBP laboratory report No. NY20112274 confirms that the inner layer of jacket style EFS is a knit pile fabric. Therefore, the laminated multilayer fabric of jacket style EFS consists of an outer layer woven fabric, classified in heading 5903, HTSUS, bonded to an inner layer of knit pile fleece, classified in heading 6001, HTSUS.
CBP has interpreted Note 1(c) to Chapter 60, HTSUS, to mean that if a multilayered material contains both pile fabric and non-pile fabric, the item is classified based upon the pile fabric. See HQ 965713, dated September 17, 2002; HQ 965990, dated December 19, 2002; NY N097903, dated April 8, 2010; NY J81642, dated July 3, 2003; NY I86565, dated December 19, 2002; NY I82085, dated June 19, 2002; HQ 965990, dated December 19, 2002; NY G88745, dated May 7, 2001; and, NY N060605, dated June 4, 2009. As a result, the 3-layer laminated fabric of style EFS is classified as a knit fabric under 6001, HTSUS.
Since CBP laboratory report No. NY20112274 confirms that jacket style EFS is wholly composed of only one textile material, polyester, and we have determined that the jacket is constructed from a knit fabric classified under heading 6001 per the application of Note 1(c) to Chapter 60, HTSUS, the jacket is classified as a polyester knit jacket under heading 6101, HTSUS. Furthermore, Chapter 61 of the HTSUS, does not have a water resistant provision, therefore, the issue of the jacket style EFS being water resistant is irrelevant for the purposes of classification in this case. Based on the aforementioned, since jacket style EFS has an inner layer of knit pile classified in heading, 6001, HTSUS, and the jacket is 100% polyester, it is classified as a knit polyester garment in heading 6101, HTSUS. Specifically, jacket style EFS is classified in subheading 6101.30.20, HTSUS, as “Men’s or boys’ overcoats, carcoats, capes, cloaks, anoraks (including ski-jackets), windbreakers and similar articles, knitted or crocheted, other than those of heading 6103: Of man-made fibers: Other: Other.”
As for style EMZ, since CBP did not have a sample of the garment, we rely on the laboratory results, submitted by Protestant, of the water resistance test performed by a third-party laboratory, Vartest, post-importation, and the product specifications provided by Protestant of style EMZ, to classify the garment. The product specifications for style EMZ state that the jacket is constructed from 100% nylon taffeta with a 600mm PU coating. Protestant asserts that jacket style EMZ is classified in subheading 6201.93.3000, HTSUSA, which is a water resistant subheading for men’s or boys’ anoraks, windbreakers, and similar articles, among other types of outerwear. Since the jacket is designed to be worn over other garments, and features “a full zipper frontal opening that extends to the top of the collar, two on seam pockets below the waist, and elastic cuffs,” it is classifiable in heading 6201, HTSUS.
In regards to the water resistance of style EMZ, Additional U.S. Note 2, Chapter 62, HTSUS, provides a two-part test for water resistance. A water resistant garment must (1) 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 to be water resistant under Additional U.S. Note 2, Chapter 62, HTSUS. Vartest laboratory report, A050311C, which was taken post-importation shows that style EMZ passed the water resistance test required by Additional U.S. Note 2 to Chapter 62. Therefore, based off the product specification for style EMZ, indicating that the garment has polyurethane coating and the Vartest laboratory report, we find the style EMZ is a water resistant jacket classified under subheading 6201.93.3000, HTSUSA, which provides for “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.”
HOLDING:
By application of GRI 1, we find that the men’s and boys’ jackets are classified as follows:
Jacket style EFS is classified in subheading 6101.30.20, HTSUS, as “Men’s or boys’ overcoats, carcoats, capes, cloaks, anoraks (including ski-jackets), windbreakers and similar articles, knitted or crocheted, other than those of heading 6103: Of man-made fibers: Other: Other.”
Jacket style EMZ is classified 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.”
You are instructed to GRANT the protest with respect to jacket style EMZ and DENY the protest with respect to jacket style EFS.
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,
For Craig. T. Clark, Director
Commercial and Trade Facilitation Division