H281318

HQ H281318 April 29, 2020 OT:RR:CTF:FTM H281318 MJD CATEGORY: Classification TARIFF NO.: 6202.93.50 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, ther

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 su