H306020

 HQ H306020 October 20, 2020 OT:RR:CTF:FTM H306020 MJD CATEGORY: Classification TARIFF NO.: 6201.93.3000; 6203.43.1500; 6203.43.3590 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. 1601-11-100355; Classification of Boys’ Garments Dear Port Director: This is in reference to the Application for Further Review (“AFR”) of Protest No. 1601-11-100355 (“Protest”), timely filed on November 29, 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 boys’ garments styles C37, 9V1, C23, C22, LMM, L47, and CUW, 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’ garments, styles C37, 9V1, C23, C22, LMM, L47, and CUW, entered on December 8, 2010, under water resistant provisions of Chapter 62, HTSUS. Protestant describes all of the garments as water resistant with a coating that is “an application of a plastic material on the inner surface of the outer shell.” See Protest at page 3. Style C37 is described as a boy’s heavyweight parka with a shell fabric that is “100% Nylon Cire WR Quilted” with a 100% nylon lining. See Protest at Exhibit A. Style 9V1 is described as a boy’s ski bib with a shell fabric that is 178T nylon taslan, coated with 600 mm of polyurethane, and has a lining fabric of a 190T polyester taffeta. Id. Style CUW is a boy’s three stripe lightweight jacket. The shell fabric is a 100% polyester twill with a 600 mm polyurethane coating, and a lining that is 100% polyester microfleece. Id. Style C23 is a boy’s midweight parka that has a shell fabric that is “100% Nylon Textured Water/Repellent 600mm coating,” with a lining that is 100% polyester polar fleece quilted. Id. Style C22 is described as a boy’s heavyweight parka that is constructed of “100% NYLON CIRE MILKY COATED 600ML WR Quilted,” and has a 100% nylon 210T lining. Id. Protestant asserts that styles C23 and C22 are the same style, fabric, and construction. Style L47 is described as a boy’s trainer jacket that is 100% polyester dewspo with a 600MM polyurethane coating, and a jersey lining. Lastly, style LMM is described as boy’s two-piece set that is 100% polyester dewspo with a coating of 600 mm water resistant polyurethane and a jersey lining. On March 14, 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. See Exhibit C. In the CBP Form 29, CBP requested samples of the boy’s ski bib style 9V1, and the boy’s jacket styles C37 and CUW. Id. In response to the CBP Form 29, Protestant sent jacket styles C37 and C22 to be tested by the CBP laboratory. See Exhibit E. In May 2011, the CBP laboratory reported via laboratory report no. SV20110610 that the sample of boy’s jacket style C37 did not meet the water resistant test specified in Additional U.S. Note 2 to Chapter 62, HTSUS (“Note 2”). See Protest at Exhibit D. Also, in May 2011, the CBP laboratory reported via laboratory report no. SV20110684 that the style C22 boy’s jacket did not meet the water resistant test in Note 2. Subsequently, on February 10, 2020, the CBP laboratory was sent an unquilted sample of style C37 to test for water resistance per Note 2. On March 9, 2020, the CBP laboratory reported via laboratory report no. NY20200231 that the sample of style C37 met the water resistant test required by Note 2. In September 2020, Protestant also sent boy’s jacket style C23 to the CBP laboratory to be tested for water resistance. On October 9, 2020, the CBP laboratory reported via laboratory report no. NY20200949 that style C23 met the water resistant test required by Note 2. In addition, Protestant had independent laboratories test some of the garments prior to importation and post importation. Intertek laboratories tested style C37 prior to importation and found via laboratory report no. WUXT00253152 that style C37 met the water resistance test required by Note 2. See Exhibit E. Also, post importation Protestant had style C37 tested by Vartest laboratories which found via laboratory report no. A032411C that the garment met the water resistance test required by Note 2. Id. Vartest laboratories also tested post importation style CUW via report no. A051711C, style C22 via report no. A040611A, style L47 via report no. A042011D, and style LMM via report no. A050411C, which all reported the garments met the water resistance test required by Note 2. Id. In addition, style 9V1 was tested by Taiwan Textile Research Institute and via laboratory report no. TPF9E285, the garment met the water resistant test in Note 2. Id. The boy’s jackets styles C37, C23, LMM, L47, CUW, and C22 were entered under subheading 6201.93.3000, HTSUSA (Annotated), 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 rate advanced the garments 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’.” The boy’s pants style LMM were entered under subheading 6203.43.3590, 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: Water resistant trousers or breeches: Other.” CBP reclassified and rate advanced the boy’s 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: Trousers and breeches: Boys’: Other.” The boy’s ski bibs style 9V1 were entered under subheading 6203.43.1500, 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: Bib and brace overalls: Water resistant.” The ski bibs were not listed on the final CBP form 29, however Protestant in their AFR claims they were reclassified under subheading 6203.43.2050, 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: Bib and brace overalls: Other: Other: Boys’, sizes 2-7: Other.” ISSUE: What is the tariff classification of Outerstuff boy’s garments styles C37, 9V1, C23, C22, LMM, L47, and CUW? 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 o

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’… * * * * *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: Bib and brace overalls:6201.43.1500: Water resistant…6203.43.20: Other… Other… Boys’, sizes 2-7: 6203.43.2050: Other… 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. . . * * * * *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, 6