OT:RR:CTF:FTM H306018 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. 1601-11-100341; Classification of Girls’ and Boys’ Pants and Jackets
Dear Port Director:
This is in reference to the Application for Further Review (“AFR”) of Protest No. 1601-11-100341 (“Protest”), timely filed on November 8, 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 girls’ and boys’ pants and jackets, styles R-44C3P, R18-44C3P, RP-44C3P (collectively “C3P”), R-14C4R, R-15C4R, R15-C4R (“C4R”), R-44C32, and R-45C32 (“C32”), 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’ and girls’ pants and jackets, styles C3P, C4R, and C32, entered on June 23, 2010, under water resistant provisions of Chapter 62, HTSUS. Protestant in their AFR request states that all three styles are constructed from the same exact fabric. See Protest at page 2. Specifically, Protestant asserts that all three styles are constructed of “100% Poly dewspo 210-T 600 MM PU coated. Additionally, they have an inner lining of White Jersey (T/C Jersey 65/35 120 GMS). The water resistant coating is an application of plastic material on the inner surface of the outer shell.” Id. The garments are further described as follows:
Pants:
The Style C3P pant features an elastic waistband and 1/4” double needle at front and back rise with 1/8” self fabric piping at the bottom of each pant leg.
The Style C4R pant has a 1 1/4” waistband with double needle stich at the top and bottom, 1 1/4” wide dewspo tape along the side of each pant leg, and a 2” side opening at the bottom.
The Style C32 pant is identical to the Style C4R pant, but features a narrower strip of dewspo tape down the side of each pant leg.
Jackets:
The Style C4R jacket is hooded and features a zipper front extending to the collar, two self fabric pockets below the waist, and 1/2” yoko rib waistband with straddle stich.
The Style C32 jacket is identical to Style C4R jacket, but includes a 3/8” Poly dewspo neck binding with single needle edge.
The Style C3P jacket is a long sleeved garment that features a nylon coil zipper, elastic cuffs, and two welt pockets.
On March 7, 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. CBP requested samples of boys’ pant style C3P, girls’ jacket style C4R and C32, and girls’ pant style C4R and C32. See Protest at Exhibit C. In response to the CBP Form 29, Protestant sent girls’ jacket and pant style C32. On April 6, 2011, CBP Savannah laboratory received the samples. On April 20, 2011, the laboratory via report no. SV20110618 and SV20110619 reported that jacket style C32 and pant style C32 respectively, were water resistant within the meaning of Additional U.S. Note 2 to Chapter 62, HTSUS. See Protest at Exhibit D.
In addition, Protestant had independent laboratories test styles C3P, C4R, and C32 for water resistance. See Protest at Exhibit E. Prior to importation, SGS laboratory via report no. SH10098476/TX found that all three styles passed the water resistant requirement of Additional U.S. Note 2 to Chapter 62, HTSUS. Also, post-importation Vartest laboratory via report A032411B showed style C32 pant and jacket passed the water resistant test required by Additional U.S. Note 2 to Chapter 62, HTSUS. On April 27, 2011, CBP notified Protestant via CBP Form 29 that based on laboratory analysis of similar merchandise of the same manufacturer they would reclassify and rate advance styles C3P and C4R under non water resistant provisions of Chapter 62, HTSUS. The CBP Form 29 did not mention style C32. Subsequently, on November 8, 2011, Grunfeld, Desiderio, Lebowitz, Silverman & Klestadt, LLP, filed the protest and AFR on behalf of Outerstuff.
The boys’ pants were entered under subheading 6203.43.3590, HTSUSA (Annotated), 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 liquidated the boys’ 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: Other.”
The girls’ jackets were entered under subheading 6202.93.4500, HTSUSA, 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.” CBP reclassified and liquidated the girls’ jackets under subheading 6202.93.5021, HTSUSA, 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: Other: girls.”
The girls’ pants were entered under subheading 6204.63.3090, HTSUSA, which provides for “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.” CBP reclassified and liquidated the girls’ pants under subheading 6204.63.3530, HTSUSA, which provides for “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: Trousers and breeches: Girls’: Other.”
The boy’s jackets were entered 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.” CBP reclassified and liquidated the boy’s jacket 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’.”
ISSUE:
What is the tariff classification of boys’ and girls’ pants and jackets of Outerstuff styles C3P, C4R, and C32?
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’…
* * * * *
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…
6202.93.50 Other…
6202.93.5021 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’:
6204.63.3530: 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.
In the instant case, Protestant argues that styles C3P, C4R and C32 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 Additional U.S. Note 2 to Chapter 62, HTSUS. Additional U.S. Note 2 to Chapter 62, HTSUS, 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 rain test, which requires that no more than one gram of water penetrates the item when subjected to a water pressure of 600 mm for two minutes.
The CBP laboratory tested a sample of girl’s pant and jacket of style C32 for water resistance. The laboratory found that both jacket and pant passed the water resistant test required by Additional U.S. Note 2 to Chapter 62, HTSUS. In addition, prior to importation, Protestant had style C32 tested for water resistance by SGS laboratory. SGS laboratory report no. SH10098476/TX also found that style C32 passed the water resistant test set forth in Additional U.S. Note 2 to Chapter 62, HTSUS. Lastly, post-importation Protestant provided Vartest report A032411B that showed style C32 pant and jacket passed the water resistant test required by Additional U.S. Note 2 to Chapter 62, HTSUS. Accordingly, based on the CBP laboratory test style C32 garments are classified in water resistant provisions of Chapter 62, HTSUS.
It should be noted that CBP did not rely on the independent laboratory results submitted by Protestant to classify style C32. CBP generally relies on its own laboratory analysis in order to maintain consistency when classifying products. See HQ 957282, dated March 28, 1995. CBP cannot always rely on outside laboratory reports because they may use different methods than what is stipulated in the HTSUS, and CBP cannot verify that the merchandise tested by an outside laboratory was the same exact merchandise that was imported. Id.
While CBP had samples of style C32 to test for water resistance, CBP did not have samples of style C3P or C4R to test. Protestant claimed and provided documentation in its Protest that styles C3P and C4R were constructed of the same exact fabric as style C32. See Protest at page 2 and Exhibit A. Specifically, the technical specifications provided by Protestant state that styles C3P, C4R, and C32 are “100% POLY DEWSPO” with a 600 mm polyurethane coating and an inner jersey lining. Based on the technical specifications provided by Protestant, we do not disagree with Protestant that styles C3P, C4R, and C32 are constructed from the same material. Since styles C3P, C4R and C32 are constructed from the same fabric, we can apply the CBP laboratory results from style C32 to classify styles C4R and C3P. As mentioned above, the CBP laboratory confirmed that style C32 is a water resistant garment; therefore, styles C3P and C4R, which are made from the same material as style C32, are classified as water resistant garments per Additional U.S. Note 2 to Chapter 62, HTSUS. Accordingly, CBP’s classification and liquidation of the girls’ and boys’ pantsand jackets styles C3P, C4R and C32 in subheadings 6201.93.3521, 6202.93.5021, 6203.43.4020, and 6204.63.3530, HTSUSA, was incorrect. Boys’ and girls’ jackets and pants, styles C3P, C4R, and C32, are water resistant garments per Additional U.S. Note 2 to Chapter 62, HTSUS, and classified in subheadings 6202.93.4500, 6203.43.3590, 6204.63.3090, and 6201.93.3000, HTSUSA.
HOLDING:
By application of GRIs 1 and 6, we find that the girls’ and boys’ pants and jackets are classified as follow:
The girls’ jackets are classified in 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 2010 column one, general duty rate is 7.1% ad valorem.
The boys’ 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.” The 2010 column one, general duty rate is 7.1% ad valorem.
The girls’ pants are classified in 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.” The 2010 column one, general duty rate is 7.1% ad valorem.
The boys’ jacket 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.” 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