CLA-2 OT:RR:CTF:FTM H265483 GA/IOR
Port Director
Service Port – Los Angeles/Long Beach Seaport
U.S. Customs and Border Protection
301 E. Ocean Blvd.
Suite 1400
Long Beach, CA 90802
Attn: Import Specialist Elvira Mazich
RE: Application for Further Review of Protest No. 2704-14-100384; Classification of motorcycle garments
Dear Port Director:
This is in reference to the Application for Further Review (“AFR”) of Protest No. 2704-14-100384, filed on behalf of Raw International (“Raw”). The AFR concerns the classification of motorcycle garments under the Harmonized Tariff Schedule of the United States (“HTSUS”). Samples were received with your submission.
FACTS:
The merchandise is identified as a “Desert Jacket” (Akito #182470) and “Desert Pants” (Akito #182670). Style “Desert Jacket” consists of a mesh lined jacket with a separate removable liner that is not designed to be worn on its own. The jacket and the liner are constructed from 100% polyester woven fabric. The outer fabric on a portion of the front, back and inside arm is a mesh type fabric. The jacket features a full front opening with a zipper closure that extends to the top of the collar, long sleeves with a hook and loop tightening closure at the end of each sleeve, adjustable tightening straps for the inside of the arm at the forearm and mid-upper arm, hemmed waistband with an adjustable tightening hook and loop closure on each side and zippered pockets at the waist. The jacket contains protective pads in the sleeves extending from above the elbow almost to the wrist, at the shoulders and in the back. The mesh lining of the jacket contains a pocket with a hook and loop closure containing a removable 3/8” thick protective pad that is 15.5” long and 12” wide at its widest part. The jacket has an 8” horizontal zipper on the inside of the mesh lining in the back that can be used to zip together the inside back of the jacket with the outside back of the “Desert Pants.” The jacket zipper closure is left over right.
In the print materials submitted with the protest, the “Desert Jacket” is described on an Akito page headed with the text “GO RIDE”, with two photos of people riding motorcycles. The jacket is described as including “reinforcements at all impact zones using abrasion resistant AIRTENA®” , “CE approved protectors at shoulders and elbows”, “protector pocket provided to retrofit Knox Part 65 Back Protector,” and “ARD Airvent – ventilation system on arms, chest and back.”
Style “Desert Pants” consists of a pair of trousers and two removable liners that cannot be worn as a separate garment, as the liners are not designed to be worn on their own. The outer pants and liners are composed of 100% polyester woven fabric. The outer pants features mesh lining, a front flat waistband secured by a flap with two snap left over right closure, an adjustable buckle at each side of the waistband, a fly front opening with zipper closure, two front slash pockets, nylon knit panels above each knee, side leg openings with zipper closures, two cargo pockets at the outer thigh, hemmed leg openings with snap closure, and zippered vents at the middle of each hip front with the logo “AIRVENT” on one. The outer pants contain removable protective pads in the knee and thigh areas. The outside of the outer pant has an insert in a contrasting color and fabric in the groin area. The pants have various logos sewn onto the out pant, including a tag stating “SHOKBLOK INTEGRATED ARMOUR SYSTEMS” at the left knee, a tag stating “MOTORCYCLE”, at the right thigh, and embroidered text stating “ARD ADVANCE REACTIVE DESIGN” on the right hip front. The pant has a 22” horizontal zipper on the outside of the back of the pants as well as an 8” zipper that can connect the pants to the “Desert Jacket.”
In the print materials submitted with the protest, the “Desert Pants” are described on an Akito page headed with the text “GO RIDE”, with two photos of a person standing next to a motorcycle. The “Desert Pants” are described as including “reinforcements at all impact zones using abrasion resistant AIRTENA®,” “CE approved protectors at knees”, ARD Airvent ventilation system on the thighs,” “heatshield inserts on inside leg”, and “long and short connecting zip.”
The subject merchandise was entered on September 12, 2013. The jacket and pants were liquidated under heading 6211, HTSUS, which provides for “Track suits, ski-suits and swimwear; other garments.” The protestant claims the jacket and pants are correctly classified consistent with the classification of the same merchandise of a different liquidated entry under heading 6202, HTSUS as a women’s or girls water resistant jacket, and as women’s or girls water resistant trousers under heading 6204, HTSUS, respectively.
ISSUE:
Whether the motorcycle gear is classified in Chapter 62, HTSUS, as jackets and trousers, or under heading 6211, HTSUS, as other garments.
LAW AND ANALYSIS:
Initially, we note that the matter protested 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. 3901-12-101134 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 2013 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:
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:
6203 Men’s or boys’ suits, ensembles, suit-type jackets, blazers, trousers,
bib, and brace overalls, breeches and shorts (other than swimwear):
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):
6211 Track suits, ski-suits and swimwear; other garments:
The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System at the international level. While not legally binding or dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989).
EN 62.11 states, in relevant part, as follows:
The provisions of the Explanatory Note to heading 61.12 concerning track suits, ski suits and swimwear and of the Explanatory Note to heading 61.14 concerning other garments apply, mutatis mutandis, to the articles of this heading.
Heading 6114, HTSUS, provides for knitted or crocheted other garments. The EN for heading 61.14 states, in relevant part, as follows:
This heading covers knitted or crocheted garments which are not included more specifically in the preceding headings of this Chapter.
The heading includes, inter alia:
(1) Aprons, boiler suits (coveralls), smocks and other protective clothing of a kind worn
By mechanics, factory workers, surgeons, etc
(2) Clerical or ecclesiastical garments and vestments (e.g., monks’ habits, cassocks, copes, soutanes, surplices).
(3) Professional or scholastic gowns and robes
(4) Specialized clothing for airmen, etc. (e.g., airmen’s electrically heated clothing).
(5) Special articles of apparel, whether or not incorporating incidentally protective components such as pads or padding in the elbow, knee or groin areas, used for certain sports or for dancing or gymnastics (e.g., fencing clothing, jockeys’ silks, ballet skirts, leotards). However, protective equipment for sports or games (e.g., fencing masks and breast plates, ice hockey pants, etc.) are excluded (heading 95.06).
* * * * *
Chapter 62 Note 8 provides as follows:
Garments of this chapter designed for left over right closure at the front shall be regarded as men's or boys' garments, and those designed for right over left closure at the front as women's or girls' garments. These provisions do not apply where the cut of the garment clearly indicates that it is designed for one or other of the sexes.
Protestant argues that the merchandise is a waterproof jacket and waterproof pants marked as motorcycle gear and should be classified under the provisions for jackets and trousers in Chapter 62, HTSUS. The protest asserts that the correct classification of the jacket and pants is in headings 6202, HTSUS and 6204, HTSUS, respectively. Headings 6202, HTSUS and 6204, HTSUS, are for women’s or girl’s apparel. The subject garments have left over right closures at the front, and nothing in the cut of the garments indicates that they are for one or other of the sexes, therefore they are classifiable as men’s or boys’ apparel.
CBP has taken the view that the headings for jackets and trousers, including headings 6201 and 6203, cover conventional apparel and not apparel which is specialized for a specific, narrow purpose and limited in use to that purpose as evidenced by the construction of the garment. See HQ 957469, dated November 7, 1995, on the classification of knit baseball and football compression shorts. The Desert Jacket and Desert Pant are not articles of conventional apparel. Rather, the jacket and pants are specialized articles of apparel designed to be worn only while motorcycling. As a result, we find that they are not classified in headings 6201 or 6203, HTSUS.
Moreover, with respect to the jacket, heading 6201 covers anoraks, windbreakers and similar articles, a group of garments which includes “jackets,” and which are garments designed to be worn over another garment, for protection against the elements. It is CBP’s position that the specialized features of the “Desert Jacket” render it a garment as something other than for protection from the elements, and it is not classifiable in heading 6201, HTSUS.
Heading 6211, HTSUS, provides for: “Track suits, ski-suits and swimwear; other garments.” With respect to the EN to 62.11, CBP considers that the term "certain" limits the scope of the heading to those articles of sporting apparel which, protective or otherwise, are as a general matter, worn only while engaging in the activity for which they were designed. See HQ 957469. Thus, while football pants or baseball pants might be classifiable in heading 6211, HTSUS, such articles as tennis or rugby shorts, which are often worn off the court or playing field, would most likely not be so classifiable. Id. In determining if a particular garment is classifiable as a special article of sports apparel classifiable in heading 6114, HTSUS, or, as in this case, heading 6211, HTSUS, CBP has looked to whether the garment is designed to be worn while engaged in a specific sport as illustrated by its ability to serve a particular function for that sport, such as provide additional protection to the wearer, and its recognized uniqueness to that sport. Id. Finally, and crucially, CBP also looks to whether the garment would be worn only while participating in the sport for which it is designed and would not ordinarily be worn at any other time.
The Desert Jacket and Desert Pant, are specialized articles of apparel designed to be worn only while motorcycling. The jacket and pants incorporate features that make them particularly suited for motorcycling such as padding at the sleeves, shoulders, back, knees and thighs, knot panels above the knees, heat protection in the groin, mesh liner and other ventilation features, abrasion resistance, zippers to connect the jacket and pants, and multiple points of adjustment for the fit of the sleeves. Due to these features, we find it unlikely that the jacket and pants would be worn at any other time than motorcycling. As a result, we find that the jacket and pants are special articles of apparel used for motorcycling and are, accordingly, classified in heading 6211, HTSUS, as other garments. This determination is consistent with the classification of motorcycle apparel and other specialized garments. See e.g. L87410, dated September 15, 2005, K87102, dated July 8, 2004, I85359, dated September 16, 2002 (classifying motorcycle jackets pants in heading 6211, HTSUS) and HQ 967815, dated September 21, 2005 (classifying paintball pants in heading 6211, HTSUS).
Another factor to consider, and one which serves to bolster the argument that these garments are designed for use only while motorcycling and would not normally be worn at any other time, is the manner in which the garments are marketed and sold. The garments are sold on a page that says “Go Ride”, they are marketed as having “CE,” (a motorcycling standard) approved features, and the pants have a tag that says “Motorcycle.” They are marketed as motorcycle apparel. Recognizing that consumers generally use a product in the manner in which it is marketed, and considering the design and construction of the garments, it is unlikely they will be worn for any purpose other than motorcycling.
Consequently, we find that the “Desert Jacket” and “Desert Pants” are properly classified in heading 6211, HTSUS. Specifically, the jacket and pants are classified in subheading 6211.33.00, HTSUS, which provides for “Track suits, ski-suits and swimwear; other garments: Other garments, men’s or boys’: Of man-made fibers.”
HOLDING:
By application of GRIs 1 and 6, the “Desert Jacket” and “Desert Pants” are classified in heading 6211, HTSUS, and specifically, in subheading 6211.33.00, HTSUS, which provides for “Track suits, ski-suits and swimwear; other garments: Other garments, men’s or boys’: Of man-made fibers.” The column one, general rate of duty is 16 percent ad valorem.
You are instructed to DENY the protest.
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 Harmon, Director
Commercial and Trade Facilitation Division