H306016

U.S. Department of Homeland Security Washington, DC 20229 U.S. Customs and Border Protection HQ H306016 July 21, 2020 OT:RR:CTF:FTM H306016 MJD CATEGORY: Classification TARIFF NO.: 6101.30.2010; 6101.30.2020; 6201.93.3000; 6201.93.3511; 6201.93.3521 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. 1601-11-100326; Classification of Men’s and Boys’ Jackets Dear Port Director: This is in reference to the Application for Further Review (“AFR”) of Protest No. 1601-11-100326 (“Protest”), timely filed on October 11, 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 jacket styles K-4-40EMZ (“EMZ”) and K4-40 EFS (“EFS”) under the Harmonized Tariff Schedule of the United States (“HTSUS”). Our decision is set forth below. FACTS: The merchandise under protest concerns jacket styles EMZ and EFS. Protestant describes the jackets as follows: The goods in this entry consist of woven microfiber and micro fleece jackets comprised of 100% poly microfiber 600MM PU coated. Additionally, there is an inner lining comprised of 100% Poly anti pill micro polar fleece with 100% poly taffeta 190T for lining of protective storm cuff. . . The EMZ style jacket features a full zipper frontal opening that extends to the top of the collar, two on seam pockets below the waist, and elastic cuffs. The EFS style jacket features a full zipper frontal opening that extends to the top of the collar, a zipper pocket on the right chest, two open pockets below the waist, long hemmed sleeves, and a hemmed waistband. Protestant further claims that jacket styles EMZ and EFS are made of the same fabrics. However, contrary to Protestant’s assertion, styles EMZ and EFS are made from different fabrics. Based on the product specifications provided by Protestant, jacket style EFS appears to be constructed from a 3-layer laminated fabric. The jacket is comprised of an outer layer of 100% poly microfiber 600mm coated fabric bonded to a 100% poly micro polar fleece on the inside. The body is lined with 100% poly micromesh, and the protective storm cuff is lined 100% poly taffeta. Unlike style EFS, style EMZ is described in the product specifications, provided by Protestant, as being constructed from 100% nylon taffeta with a 600mm PU coating. See Protest at Exhibit A. The CBP laboratory did not test style EMZ, but they did test style EFS via laboratory report No. NY20112274, and provided, in part, the following description regarding jacket style EFS: The jacket is constructed of a bonded shell fabric and a knit lining fabric. The bonded shell fabric is composed of a woven face fabric bonded to a knit pile backing fabric. The sample is wholly composed of polyester fibers. The sample was not tested for water resistance requirements as the jacket is not classified under HTSUS Chapter 62 as per HQ Ruling 965713. Outerstuff, however, had third-party laboratories test both style EFS and EMZ for water resistance. Style EFS was tested for water resistance pre-importation via SGS laboratory report No. SH10098998/TX and post-importation via Vartest laboratory report No. A050311D. Both laboratory tests reported style EFS passed the water resistance test as specified in Additional U.S. Note 2, Chapter 62, HTSUS. Style EMZ was only tested post-importation via Vartest laboratory report no. A050311C, which reported that style EMZ passed the water resistance test as specified in Additional U.S. Note 2, Chapter 62, HTSUS. The instant garments were reclassified by the Port of Charleston via Notice of Action (“CBP Form 29”) due to laboratory analysis of similar merchandise from the same manufacturer. They were reclassified in subheading 6201.93.3511, HTSUSA (annotated), 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: Other: Men’s.” In its AFR request, Protestant asserts that both jackets should be classified as water resistant anoraks 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.” ISSUE: What is the tariff classification of Outerstuff jacket styles EMZ and EFS? 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. (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. 1601-11-100326 was properly accorded to Protestant pursuant to 19 C.F.R. §174.24 because the decision against which the protest was filed is alleged to be inconsistent with a ruling of the Commissioner of Customs or his designee, or with a decision made at any port with respect to the same or substantially similarly merchandise. Specifically, protestant alleges the action of the Port are inconsistent with New York Ruling Letter (“NY”) N152577, dated March 31, 2011; N167956, dated June 14, 2011; Headquarters Ruling Letter (“HQ”) 951756, dated June 15, 1993; HQ 957061, dated March 30, 1995; N176576, dated August 12, 2011; N173955, dated July 28, 2011; N165393, dated June 6, 2011; N160388, dated May 10, 2011; N110495, dated September 13, 2010; N116381, dated August 20, 2010; and, NY C81239, dated November 3, 1997. 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 HTSUS provisions under consideration are the following: 6101: Men’s or boys’ overcoats, carcoats, capes, cloaks, anoraks (including ski-jackets), windbreakers and similar articles, knitted or crocheted, other than those of heading 6103: 6101.30: Of man-made fibers: Other: 6101.30.20: Other. . . 6101.30.2010: Men’s. . . 6101.30.2020: Boys’. . . * * * * * 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. . . * * * * * Note 1(c) to Chapter 60, HTSUS, provides: This chapter does not cover: . . . (c) Knitted or crocheted fabrics, impregnated, coated, covered or laminated, of chapter 59. However, knitted or crocheted pile fabrics, impregnated, coated, covered or laminated, remain classified in heading 6001. Note 1 to Chapter 61 HTSUS provides: This chapter applies only to made up knitted or crocheted articles. Note 1 to Chapter 62 HTSUS provides: This chapter applies only to made up articles of any textile fabric other than wadding,

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. (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. 1601-11-100326 was properly accorded to Protestant pursuant to 19 C.F.R. §174.24 because the decision against which the protest was filed is alleged to be inconsistent with a ruling of the Commissioner of Customs or his designee, or with a decision made at any port with respect to the same or substantially similarly merchandise. Specifically, protestant alleges the action of the Port are inconsistent with New York Ruling Letter (“NY”) N152577, dated March 31, 2011; N167956, dated June 14, 2011; Headquarters Ruling Letter (“HQ”) 951756, dated June 15, 1993; HQ 957061, dated March 30, 1995; N176576, dated August 12, 2011; N173955, dated July 28, 2011; N165393, dated June 6, 2011; N160388, dated May 10, 2011; N110495, dated September 13, 2010; N116381, dated August 20, 2010; and, NY C81239, dated November 3, 1997.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 HTSUS provisions under consideration are the following:6101: Men’s or boys’ overcoats, carcoats, capes, cloaks, anoraks (including ski-jackets), windbreakers and similar articles, knitted or crocheted,