OT:RR:CTF:FTM H306020 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. 1601-11-100355; Classification of Boys’ Garments
Dear Port Director:
This is in reference to the Application for Further Review (“AFR”) of Protest No. 1601-11-100355 (“Protest”), timely filed on November 29, 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 boys’ garments styles C37, 9V1, C23, C22, LMM, L47, and CUW, under the Harmonized Tariff Schedule of the United States (“HTSUS”). Our decision is set forth below.
FACTS:
The merchandise under protest concerns the classification of boys’ garments, styles C37, 9V1, C23, C22, LMM, L47, and CUW, entered on December 8, 2010, under water resistant provisions of Chapter 62, HTSUS. Protestant describes all of the garments as water resistant with a coating that is “an application of a plastic material on the inner surface of the outer shell.” See Protest at page 3. Style C37 is described as a boy’s heavyweight parka with a shell fabric that is “100% Nylon Cire WR Quilted” with a 100% nylon lining. See Protest at Exhibit A. Style 9V1 is described as a boy’s ski bib with a shell fabric that is 178T nylon taslan, coated with 600 mm of polyurethane, and has a lining fabric of a 190T polyester taffeta. Id. Style CUW is a boy’s three stripe lightweight jacket. The shell fabric is a 100% polyester twill with a 600 mm polyurethane coating, and a lining that is 100% polyester microfleece. Id. Style C23 is a boy’s midweight parka that has a shell fabric that is “100% Nylon Textured Water/Repellent 600mm coating,” with a lining that is 100% polyester polar fleece quilted. Id. Style C22 is described as a boy’s heavyweight parka that is constructed of “100% NYLON CIRE MILKY COATED 600ML WR Quilted,” and has a 100% nylon 210T lining. Id. Protestant asserts that styles C23 and C22 are the same style, fabric, and construction. Style L47 is described as a boy’s trainer jacket that is 100% polyester dewspo with a 600MM polyurethane coating, and a jersey lining. Lastly, style LMM is described as boy’s two-piece set that is 100% polyester dewspo with a coating of 600 mm water resistant polyurethane and a jersey lining.
On March 14, 2011, CBP sent Protestant a Notice of Action (“CBP Form 29”) stating that based on laboratory analysis of similar merchandise made by the same manufacturer, the merchandise in this protest may be reclassified under non-water resistant provisions of Chapter 62, HTSUS. See Exhibit C. In the CBP Form 29, CBP requested samples of the boy’s ski bib style 9V1, and the boy’s jacket styles C37 and CUW. Id. In response to the CBP Form 29, Protestant sent jacket styles C37 and C22 to be tested by the CBP laboratory. See Exhibit E. In May 2011, the CBP laboratory reported via laboratory report no. SV20110610 that the sample of boy’s jacket style C37 did not meet the water resistant test specified in Additional U.S. Note 2 to Chapter 62, HTSUS (“Note 2”). See Protest at Exhibit D. Also, in May 2011, the CBP laboratory reported via laboratory report no. SV20110684 that the style C22 boy’s jacket did not meet the water resistant test in Note 2.
Subsequently, on February 10, 2020, the CBP laboratory was sent an unquilted sample of style C37 to test for water resistance per Note 2. On March 9, 2020, the CBP laboratory reported via laboratory report no. NY20200231 that the sample of style C37 met the water resistant test required by Note 2. In September 2020, Protestant also sent boy’s jacket style C23 to the CBP laboratory to be tested for water resistance. On October 9, 2020, the CBP laboratory reported via laboratory report no. NY20200949 that style C23 met the water resistant test required by Note 2.
In addition, Protestant had independent laboratories test some of the garments prior to importation and post importation. Intertek laboratories tested style C37 prior to importation and found via laboratory report no. WUXT00253152 that style C37 met the water resistance test required by Note 2. See Exhibit E. Also, post importation Protestant had style C37 tested by Vartest laboratories which found via laboratory report no. A032411C that the garment met the water resistance test required by Note 2. Id. Vartest laboratories also tested post importation style CUW via report no. A051711C, style C22 via report no. A040611A, style L47 via report no. A042011D, and style LMM via report no. A050411C, which all reported the garments met the water resistance test required by Note 2. Id. In addition, style 9V1 was tested by Taiwan Textile Research Institute and via laboratory report no. TPF9E285, the garment met the water resistant test in Note 2. Id.
The boy’s jackets styles C37, C23, LMM, L47, CUW, and C22 were entered under subheading 6201.93.3000, HTSUSA (Annotated), 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.” CBP reclassified and rate advanced the garments under subheading 6201.93.3521, 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: Other: Boys’.”
The boy’s pants style LMM were entered 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.” CBP reclassified and rate advanced the boy’s pants 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 boy’s ski bibs style 9V1 were entered under subheading 6203.43.1500, 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: Bib and brace overalls: Water resistant.” The ski bibs were not listed on the final CBP form 29, however Protestant in their AFR claims they were reclassified under subheading 6203.43.2050, 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: Bib and brace overalls: Other: Other: Boys’, sizes 2-7: Other.”
ISSUE:
What is the tariff classification of Outerstuff boy’s garments styles C37, 9V1, C23, C22, LMM, L47, and CUW?
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 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. . .
6201.93.3521: Boys’…
* * * * *
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:
Bib and brace overalls:
6201.43.1500: Water resistant…
6203.43.20: Other…
Other…
Boys’, sizes 2-7:
6203.43.2050: Other…
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. . .
* * * * *
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.
In the instant case, Protestant argues that styles C37, 9V1, C23, C22, LMM, L47, and CUW are water resistant garments classified in Chapter 62, HTSUS. In order for a garment to be considered water resistant per Chapter 62, HTSUS, it must pass the two-part water resistance test stipulated in Note 2. Note 2 provides that first the water resistance of a garment “must be the result of a rubber or plastics application to the outer shell, lining or inner lining” of the garment, and second, the garment must pass the water resistant test, which requires that a garment have no more than one gram of water penetration when subjected to a water pressure of 600 millimeters for two minutes.
When CBP first tested jacket style C37 per Note 2, it failed the water resistant test. See Protest at Exhibit D. Style C37 is constructed from quilted fabric and typically quilted fabrics fail the water resistant test. The water resistant test required by Note 2 is performed on an 8-inch (per side) piece of fabric without quilting stitching (or seams), and if the garment cannot be tested without quilting stitching, an unquilted swatch of identical fabric of the garment should be requested. See Headquarters Ruling Letter (“HQ”) 085974, dated December 28, 1989. In this case, because style C37 is quilted, CBP requested from Protestant an unquilted sample of the garment. When CBP tested the sample, it passed the water resistant test required by Note 2. Therefore, based on the CBP laboratory results, we find the style C37 is a water resistant garment per Note 2.
CBP also tested style C22 for water resistance, and per CBP laboratory report no. SV20110684 the garment failed the water resistant in Note 2. Style C22 is a quilted jacket and as mentioned above quilted garments typically fail the water resistant test in Note 2. An unquilted identical fabric sample of style C22 was never tested by the CBP laboratory. However, we believe that styles C22 and C37 are the same style, fabric, and construction. The body/specifications sheets provided by Protestant show that style C22 is described as a heavyweight parka that is 100% nylon cire water repellent quilted. See Protest at Exhibit A. Likewise, style C37 is described as a heavyweight parka that is made of 100% nylon cire water repellent quilted. Id. As a result, CBP laboratory results for style C37 are applicable to style C22, to support the finding that style C22 is water resistant per Note 2.
In addition, CBP also tested a sample of style C23 for water resistance, and per CBP laboratory report no. NY20200949, the garment passed the water resistant test required by Note 2. Therefore, we find that style C23 is water resistant per Note 2. We should also note that Protestant claims that styles C22 and C23 are the same style, fabric, and construction. See Protest at page 3. We disagree. The body/specifications sheets provided by Protestant show that style C23 is a midweight parka that is 100% nylon textured water repellent, while style C22 is described as a heavyweight parka that is 100% nylon cire water repellent quilted. See Protest at Exhibit A. Therefore, we do not agree that styles C23 and C22 are the same.
As for styles 9VI, LMM, L47, and CUW, CBP did not have samples of these garments to test, and none of these garments are the same fabric and construction of styles C22, C37, or C23. Therefore, the CBP laboratory results of styles C22, C37, or C23 cannot be applied to these garments. See HQ 951756, dated June 15, 1993 (stating that CBP can apply the test results for water resistance to other shipments of identical merchandise). In the absence of the CBP’s laboratory results for styles 9VI, LMM, L47, and CUW, we note that Protestant provided independent laboratory results and the body/specifications of these garments to classify them under the HTSUS. Post-importation Vartest laboratory via report no. A051711C found that style CUW passed the water resistant test required by Note 2. In addition, the body/specifications for style CUW indicate that the garment has a polyurethane coating. Therefore, based off the product specification for style CUW and the Vartest laboratory report, we find the style CUW is a water resistant jacket per Note 2. Similarly, post importation styles L47 and LMM were tested by Vartest laboratories and via laboratory report no. A042011D and A050411C respectively, the garments passed the water resistant test required by Note 2. Also, the body/specifications for styles LMM and L47 indicates that the garments have a polyurethane coating. Therefore, based off the product specification for styles LMM and L47, and the Vartest laboratory reports, we find that styles LMM and L47 are water resistant per Note 2. Style 9V1 was tested by the Taiwan Textile Research Institute and per laboratory report no. TPF9E285, the garment passed the water resistant test in Note 2. The body/specifications sheets provided by Protestant also show the garment has a coating of polyurethane. As such, we find that style 9V1 is a water resistant garment per Note 2.
Accordingly, CBP’s classification of the outerwear garments in this protest under non-water resistant provisions in subheadings 6201.93.3521, 6203.43.2050, and 6203.43.4020, HTSUSA, was incorrect.
HOLDING:
By application of GRI 1 and GRI 6, we find that the boys’ outerwear garments are classified as follows:
The boy’s jackets styles C37, C23, LMM, L47, CUW, and C22 are classified in 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.” The 2010 column one, general duty rate is 7.1% ad valorem.
The boy’s pants style LMM are classified in 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 2010 column one, general duty rate is 7.1% ad valorem.
The boy’s ski bibs style 9V1 is classified under subheading 6203.43.1500, 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: Bib and brace overalls: Water resistant.” The 2010 column one, general duty rate is 7.1% ad valorem.
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,
For Craig. T. Clark, Director
Commercial and Trade Facilitation Division