OT:RR:CTF:FTM H281318 MJD
Port Director
U.S. Customs and Border Protection
6747 Engle Road
Middleburg Heights, OH 44130-7907
Attn: Christina Filler, Import Specialist
RE: Application for Further Review of Protest No. 4101-15-100463; Classification of Women’s and Girls’ Jackets
Dear Port Director:
The following is our decision regarding the Application for Further Review (“AFR”) of Protest No. 4101-15-100463, timely filed by Baker & McKenzie on September 4, 2015, on behalf of Tween Brands Service Company (“Tween Brands” or “Protestant”), regarding U.S. Customs and Border Protection (“CBP”) tariff classification of six women’s and girls’ puffer jackets, style numbers (“Style No.”) 750249, 756555, 750200, 750450, 751379, and 751398 under subheading 6202.93.50, of the Harmonized Tariff Schedule of the United States (“HTSUS”).
FACTS:
The merchandise under protest concerns the classification of six styles of man-made women’s and girls’ quilted puffer jackets (Styles No. 750249, 756555, 750200, 750450, 751379, 751398). The jackets differ in design, color, and construction. The bodies of the jackets are quilted all over, and have detachable hoods, except for Style No. 750249, which has no hood. In the AFR of Protest No. 4101-15-100463, Protestant claims that “[t]he jackets are made of the same fabric in different colors, and each jacket varies slightly in design and construction.” Furthermore, in a letter to CBP on June 3, 2019, Protestant states that, “[t]he quilted puffer jackets are made of the same quilted fabric and in different colors for each style number.” However, Tween Brands had all six jackets tested by an independent laboratory prior to importation, and the fabric identification number (fabric ID number) on the independent laboratory reports for each style show that the jackets are not made of the same fabric.
Between August 7, 2014, and September 3, 2014, Tween Brands entered all six styles of jackets under subheading 6202.93.45, HTSUS, as water resistant women’s and girls’ jackets, which has a duty rate of 7.1% ad valorem. Specifically, subheading 6202.93.45, HTSUS, provides for “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.”
On September 22, 2014, CBP issued two Request for Information (CBP Form 28) to Tween Brands to test the water resistance of the jackets. One Request for Information asked for three pink and three mint jacket samples in Style No. 750200. The second Request for Information asked for three black, three turquoise, and three pink jacket samples in Style No. 756555. Subsequently, on December 5, 2014, CBP sent two Notice of Action (CBP Form 29) to Tween Brands for their failure to timely respond to both Requests for Information. The Notice of Action stated that CBP would reclassify the merchandise in subheadings 6202.93.5011, HTSUSA (Annotated), and 6202.93.5021, HTSUSA, if Tween Brands did not furnish the samples they had requested. On December 18, 2014, Tween Brands responded and sent all requested sample jackets to CBP. Tween Brands also sent CBP a copy of laboratory results from an independent laboratory that tested all six styles of jackets for water resistance. The independent laboratory found that all six jackets passed the water resistance test required by Additional U.S. Note 2 to Chapter 62, HTSUS (“Note 2”).
Initially, on February 9, 2015, the CBP laboratory only tested Style No. 750200 for water resistance. The CBP laboratory report no. CH20141790, stated jacket Style No. 750200 failed the water resistance test specified in Note 2, and as a result, all six styles of jackets were liquidated under subheading 6202.93.50, HTSUS, with a duty rate of 27.7% ad valorem in May and June, 2015. Consequently, Baker & McKenzie on behalf of Tween Brands, filed the protest and AFR on September 4, 2015. CBP then sent Style No.756555 to its laboratory and on April 4, 2016, reported via laboratory report no. CH20160032, that it had passed the water resistance test of Note 2.
Since the CBP laboratory received different results for Style No. 750200 and Style No. 756555, and did not test the other four jacket styles (Styles No. 750249, 750450, 751379, and 751398), CBP allowed Protestant to send samples of the four remaining styles to be tested by the CBP laboratory for water resistance. On January 18, 2017, CBP requested the four remaining styles of jackets, Styles No. 750249, 750450, 751379, and 751398, to be tested for water resistance. In March 2017, Protestant sent all four jacket styles for the CBP laboratory to test. On August, 12, 2017, the CBP laboratory reported that Style No. 750249 and Style No. 750450 had failed the water resistance test. On August 21, 2017, the CBP laboratory reported the Style No. 751379 and Style No. 751398 had failed the water resistance test. On December 20, 2017, CBP asked Protestant to provide an eight-inch sample of Style No. 750249, but the sample was too small to test for water resistance. On October 29, 2018, CBP asked Protestant to supply a larger, one-meter by one-meter sample, which Protestant did not supply. On February 12, 2019, CBP followed up with Protestant regarding the request for a larger unquilted sample. On June 3, 2019, Protestant wrote to CBP regarding the AFR and stated that no more samples were available. On September, 2019, CBP asked Protestant again if there were anymore samples available to be tested, and Protestant confirmed that no more samples were available for testing. On November 15, 2019, CBP, representatives from Tween Brands, and counsel for Tween Brands discussed the case over the phone and it was decided that Tween Brands would search for other samples of jackets. On December 17, 2019, Protestant sent a fabric sample of Style No. 750249 to CBP. The sample was sent to the CBP laboratory in New York, and on January 30, 2020, the CBP laboratory reported that Style No. 750249 did not meet the water resistance test required by Note 2.
ISSUE:
Whether the women’s and girls’ puffer jackets are classified in subheading 6202.93.45, HTSUS, as water resistant, or in subheading 6202.93.50, HTSUS, as other.
LAW AND ANALYSIS:
We first note that the protest was properly filed 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 entries. See 19 U.S.C. § 1514(c)(3). Further Review of Protest No. 4101-15-100463 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. Specifically, the Protestant alleges that the liquidation decisions at issue are inconsistent with the following rulings: Headquarters Ruling Letter (“HQ”) 956338, dated June 20, 1994; HQ 957061, dated March 30, 1995; and Tariff Classification of Water Resistant Garments With Non-Water Resistant Hoods, 60 Fed. Reg. 31, 181, 31, 182, dated June 13, 1995.
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.
As a preliminary matter, there is no dispute at the heading level that the subject merchandise are properly classified under heading 6202, HTSUS, or subheading 6202.93, HTSUS. Instead, the dispute is at the 8-digit level between subheadings 62602.93.45, HTSUS, water resistant, and 6202.93.50, HTSUS, other. Since the dispute is at the 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.
The 2014 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:
* * *
6202.93 Anoraks (including ski-jackets), windbreakers and similar articles (including padded, sleeveless jackets):
Of man-made fibers:
* * *
Other:
* * *
Other:
* * *
Other:
6402.93.45 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 designation 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 HQ 085974, dated December 28, 1989, CBP describes the procedure required for determining whether a garment is water resistant under Additional U.S. Note 2 to Chapter 62, HTSUS, and whether a garment’s seams affect the test. The requirements are stated 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.
Additionally, in HQ 956258, dated August 4, 1994, CBP provides further information on situations that require the importer to provide a separate swatch of the garment in question for water resistance testing, and how to test when a swatch cannot be provided. CBP states as follows:
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 957282, dated March 28, 1995, explains CBP policy of relying on CBP laboratory results as opposed to independent laboratory results:
In cases such as this, where an outside report is submitted that differs from the Customs laboratory report, the Customs laboratory report cannot be disregarded and, therefore, takes precedence over the outside report. Customs Directive 099 3820-002 dated May 4, 1992. In administering the HTSUS, Customs must be consistent while classifying the same type of merchandise entering the U.S. In order to consistently classify products, the same laboratory analysis must be executed throughout Customs. Customs cannot rely on outside reports which may or may not utilize different testing methods and still remain consistent in its tariff classification. Additionally, generally Customs does not have any evidence that the merchandise tested by the outside laboratory is the same merchandise that was imported into the U.S. Therefore, Customs must rely on its own laboratory analysis when determining the proper tariff classification of merchandise.
Protestant asserts that CBP failed to properly conduct the water resistance test required by Note 2 because CBP tested the hood or quilted fabric of the jackets, and, as a result, CBP laboratory results were erroneous and the independent laboratory results are the only reliable test results.
Please note that CBP’s laboratory results are presumed correct unless the importer can prove by a preponderance of evidence that CBP made an error. See Exxon Corp. v. United States, 462 F. Supp. 378, 81 Cust. Ct. 87, C.D. 4772 (October 16, 1978). Second, to maintain consistency when classifying similar merchandise, CBP cannot rely on outside laboratory results to classify merchandise and where an outside report submitted differs from the CBP laboratory report, the CBP laboratory report cannot be disregarded and, therefore, takes precedence over the outside report. See HQ 957282. Furthermore, the water resistance test required by Note 2 is a two-part test. The water resistance of a garment “must be the result of a rubber or plastics application to the outer shell, lining or inner lining,” and the garment must pass the water resistance spray test which requires 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 the current version of AATCC Test Method 35.”
In this case, the independent laboratory only performed the water resistance spray test and failed to assess whether the garment had an application of plastics or rubber. In fact, the independent lab results quote the water resistance test required by Note 2, but omit the last sentence of the test that says“[t]his water resistance must be the result of a rubber or plastics application to the outer shell, lining or inner lining.” Therefore, the independent lab results are inconclusive as they only provide results for one part of the two-part test for water resistance required by Note 2.
Unlike, the independent laboratory results, the CBP laboratory results address both parts of the two-part test for water resistance required by Note 2. First, CBP performed the two-part water resistance test on Style No. 750200. The CBP laboratory took samples from the hood of the jacket and found that it did not pass the water resistance test. In HQ 956338, CBP found that the detachable hood of a jacket is an accessory to the jacket and not an integral part of the garment, and need not be water resistant for the jacket to be classified as water resistant. In Tariff Classification of Water Resistant Garments with Non-Water Resistant Hoods, 60 Fed. Reg. 31, 181, 31, 182 (June 13, 1995), CBP further clarified its position that a water resistant jacket with a non-water resistant hood is properly classifiable as a water resistant garment. However, CBP also stated in HQ 085974 that the water resistant spray test is performed on eight-inch pieces of fabric without seams or quilting.
Here, the only part of jacket Style No. 750200 that was unquilted or without seams was the hood of the jacket, and thus the only place on the garment suitable to test for water resistance. Furthermore, the CBP laboratory did not find an application of plastics or rubber on Style No. 750200 as required by part one of the two-part water resistance test, and so it fails the entire water resistance test required by Note 2. Thus, Style No. 750200 would have failed the two-part water resistance test regardless of whether the CBP laboratory had performed the water resistant spray test on the body of the jacket, which was very quilted, or the hood of the jacket because there was no application of plastics or rubber on the jacket.
As for the other jacket styles, the CBP laboratory took specimens from the hoods (except for Style No. 750249, which has no hood) and bodies of the jackets and they all failed the water resistance test. As stated in HQ 085974, if there is no eight-inch fabric on the garment without seams or stitching for the water resistance test to be performed on, then a separate swatch of identical unquilted fabric should be tested for water resistance, and if a swatch cannot be provided, then the water resistance test should be performed on the garment as is, regardless of any seams or quilting stitching.
In this case, because the jackets consisted of stitching and quilting throughout the bodies of the jackets, the CBP laboratory asked Protestant to provide unquilted identical fabric samples. CBP requested Protestant to provide a single eight-inch swatch of identical fabric, but it was too small to test for the water resistance spray test, and to test for an application of plastics or rubber. Typically, the water resistance test is performed on three eight-inch (per side) squares of fabric, and extra fabric is needed to test for rubber or plastics. Afterwards, CBP asked Protestant several times to supply a larger, one-meter by one-meter, sample but they were unable to furnish this sample until December 2019. On December 17, 2019, CBP received a large unquilted sample of Style No. 750249. The sample was taken to the CBP laboratory test and was found to have failed the two-part water resistance test of Note 2.
We also consider Protestant’s assertion that this case is similar to the case in HQ 957061, dated March 30, 1995. In that case, the CBP laboratory tested unquilted and quilted portions of boy’s jackets for water resistance and the garments failed the water resistance test in Note 2. An independent laboratory had tested both the quilted parts and unquilted parts of the jackets, and only the quilted parts of the jackets failed the test. In that instance, CBP accepted the results of the independent laboratory because only the quilted parts of the garment had failed, and had Customs allowed the importer to provide unquilted fabric swatches, the jackets would have passed the water resistance test. However, in that case, the CBP laboratory did not request the importer to provide unquilted fabric samples, they tested the unquilted and quilted parts of the jackets without allowing the importer the opportunity to provide unquilted swatches.
Here, the CBP laboratory requested multiple times for Tween Brands to supply unquilted fabric samples. CBP did receive an eight-inch unquilted fabric sample for Style No. 750249, but that sample was too small, and then CBP received a larger unquilted sample of Style No.750249 which failed the water resistance test, but CBP never received unquilted samples of the rest of the jackets. Thus CBP had to rely on the laboratory results performed on the quilted jacket samples and unquilted sample of Style No. 750249. Unlike, HQ 957061, these jackets did not contain enough unquilted parts to only test those sections as the jackets are quilted all over. And although the CBP laboratory results for Style No. 756555 demonstrates that the jacket passed the water resistance test, it is unclear whether or not this style shares the same fabric as the rest of the jackets. Protestant claims in their AFR, dated September 4, 2015, and in a letter to CBP, dated June 3, 2019, that all of the jackets are made of the same of fabric. However, the independent laboratory results submitted by Protestant to CBP claims that the jackets are made of different fabrics, with some sharing the same fabric ID number, except for Style No. 750249 which has its own fabric ID number. Therefore, the lab results for Style No. 756555 cannot apply to the rest of the jackets. In conclusion, the CBP laboratory did not improperly test the jackets for water resistance, and the CBP laboratory results are the only reliable laboratory results for all six jackets.
In accordance with the above, we find that the subject women’s and girls’ quilted puffer jackets in Style No. 750200, 750249, 750450, 751379, and 751398 are not water resistant and are properly classified in subheading 6202.93.50, HTSUS, and Style No. 756555 is water resistant and should be classified under subheading 6202.93.45, HTSUS.
HOLDING:
By application of GRIs 1 and 6, we find that the women’s and girls’ puffer jackets are classified as follow:
Style No. 756555 is classified in subheading 6202.93.45, HTSUS, which provides for “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 2014 column one, general duty rate is 7.1% ad valorem.
Style No. 750200, 750249, 750450, 751379, and 751398 are classified in subheading 6202.93.50, HTSUS, specifically 6202.93.5011 and 6202.93.5021. Subheading 6202.93.50 specifically provides for “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.” The 2014 column one, general duty rate is 27.7% ad valorem.
You are instructed to GRANT the protest with regards to Style No. 756555 and DENY the protest for Styles No. 750249, 750200, 750450, 751379, and 751398.
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