H312096

U.S. Department of Homeland Security Washington, DC 20229 U.S. Customs and Border Protection HQ H312096 September 22, 2020 OT:RR:CTF:FTM H312096 MD CATEGORY: Classification TARIFF NO.: 6201.93.3000 Port Director, Service Port- Los Angeles U.S. Customs and Border Protection 301 E. Ocean Road, Suite 1400 Long Beach, California 90802 Attn: Marchele Wilson, Import Specialist Re: Application for Further Review of Protest No. 2704-18-100981; Classification of Boys’ Polyester Woven Jackets Dear Port Director: The following is our decision regarding the Application for Further Review (“AFR”) of Protest No. 2704-18-100981, timely filed by Sandler, Travis, & Rosenberg P.A., on behalf of importer, KHQ Investment LLC (“KHQ” or “Protestant”), regarding U.S. Customs and Border Protection (“CBP”) tariff classification of two boys’ polyester woven jackets (Invoice Style Numbers: 2535B66005 and 2535B46805) under subheading 6201.93.3521, Harmonized Tariff Schedule of the United States Annotated (“HTSUSA”). FACTS: The merchandise under protest concerns the classification of boys’ 100% polyester woven jackets, entered under subheading 6201.93.3000, HTSUSA, as water resistant, which has a duty rate of 7.1% ad valorem. The jackets were entered on August 14, 2016 in the following six colors: black, dark grey, crocodile, blue, eclipse, and red. On March 3, 2017, CBP issued a CBP Form 28, Request for Information, to Protestant, requesting a garment sample of the polyester woven jackets, which Protestant received on March 10, 2017. On April 6, 2017, Protestant provided a sample of their “Eclipse Short Bubble Jacket”, “size L[arge]”, “color black-01”, in accordance with the style collection requested by CBP. Upon receipt, the sample was sent to the CBP Los Angeles Laboratory (“CBP Laboratory”) to test the jacket for water resistance. On October 6, 2017, the CBP Laboratory issued report number LA20171016, which stated that the sample provided by Protestant did not pass American Association of Textile Chemists and Colorists (“AATCC”) Test Method 35-1985, water resistant test, as specified in the Additional U.S. Note 2 to Chapter 62, HTSUS. The report described the sample as boys’ black colored jacket labeled “shell: 100% polyester, lining: 100% polyester, size: S/P (4), RN #130323, Made in China”. The report also stated that this sample was a woven jacket, composed solely of polyester, with a 3-inch wide horizontal quilting stitches. Further, the CBP Laboratory noted that only three shell swatches and two sleeve-lining swatches could be tested due to “insufficient sample size”. Finally, the CBP Laboratory indicated that if it received additional samples, it would issue a supplemental report. On November 29, 2017, CBP issued CBP Form 29, Notice of Action Proposed, to Protestant, stating that the initial sample had been tested and had failed the water resistance test. Three additional samples were requested so that additional testing could occur. Protestant’s counsel contacted CBP to request an extension to the allotted time to provide these samples. This request was granted, and Protestant’s counsel submitted a fabric sample in “color blue-44” on January 10, 2018. CBP confirmed receipt of the fabric sample; however, on January 24, 2018, CBP issued a CBP Form 29, Notice of Action Taken, stating that the jacket did not pass the water resistance test, as specified in the Additional U.S. Note 2 to Chapter 62, HTSUS, because the additional samples were not provided on the date agreed. Subsequently, CBP notified the Protestant that its Notice of Action had been issued in error. CBP confirmed receipt of the fabric sample and stated that CBP was in the process of sending it to the laboratory for analysis. On February 13, 2018, CBP issued a final CBP Form 29, Notice of Action Taken, indicating that, “[t]he jacket did not pass the Water Resistance: Rain Test as specified in HTSUS Chapter 62. The swatch provided does not represent the jacket that was tested”. Therefore, the boys’ jackets in question were rate advanced under subheading 6201.93.3521, HTSUSA, which provides for boys’ jackets, with a duty rate of 27.7% ad valorem. In response to an inquiry by Protestant’s counsel, CBP indicated that the water resistance claim was denied because the fabric swatch, which had been tested (blue-44), was not the same color as the original garment sample (black-01). However, on February 19, 2018, in response to CBP’s supplemental request to test the blue-44 swatch of fabric, the CBP Laboratory issued laboratory report number LA20180304, which stated that the wholly polyester woven fabric swatch passed the water resistance test. The CBP Laboratory report described the sample as “navy in color” and “cut from a piece of fabric (29” x 28”)”. The report also stated that the sample was woven, composed wholly of polyester, and “passe[d] the AATCC 35 ‘Water resistance: Main test,” as specified within Additional Note 2, Chapter 62, HTSUS. However, no information as to whether or not the fabric swatch “matched” the originally tested jacket was included within the laboratory report. On July 21, 2020, CBP requested that the CBP Laboratory re-examine the jacket fabric and the fabric swatch provided by Protestant to determine whether there were any noticeable differences in materials, weight, yarn count, or yarn number between the two samples. On August 12, 2020, the CBP Laboratory provided test results, which included microscopic analyses, construction examinations, and spectroscopic analyses for both the jacket sample and the fabric swatch. The microscopic analyses identified that the shells and linings of both fabrics were made of “uniform fibers pink-green upon rotation, not soluble in [f]ormic or [s]ulfuric acid.” Furthermore, both construction examinations found the fabric consisted of “interlaced” and “interloped” yarns. Additionally, the spectroscopic analyses identified that both fabrics possessed a plastic coating; however, where the jacket’s coating was a polyacrylate, the swatch’s coating was a polyurethane. Based on these observations, the CBP Laboratory noted that its respective fabric was wholly made of polyester, which is distinguishable by its pink and green fiber coloring, was woven, and was coated by plastic. We acknowledge the difference in plastic coating, despite the notion that the application of plastic to the fabric is not directly at-issue. The failure of the original jacket sample was not due to improper application of plastic, but due to the seepage of water through quilt stitches. Since the CBP Laboratory was unable to cut swatches from the jacket sample that did not contain quilt stitching, the fabric swatch was requested. As such, at-issue in this ruling is the mutual identity of the jacket fabric and the fabric swatch. If the jacket fabric and fabric swatch are deemed identical, the issue will shift to an analysis of whether or not both are water resistant. ISSUE: Whether the subject boys’ jackets are “water resistant” within the meaning of Additional U.S. Note 2 to Chapter 62, HTSUS. LAW AND ANALYSIS: Initially, we note that this 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. (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. 2704-18-100981 is properly warranted pursuant to 19 C.F.R. § 174.24(a) as the decision protested is alleged to be inconsistent with a ruling of the Commissioner of Customs or his designee. Protestant argues that the Port’s liquidation of the subject entry contradicts Headquarters Ruling Letter (“HQ”) 956258, dated August 4, 1995, specifically, and a number of rulings reiterating its position. See, e.g. HQ 085974, dated December 28, 1989; HQ 957061, dated March 30, 1995; HQ H187716, dated December 1, 2014; HQ H228175, dated D

Initially, we note that this 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.  (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. 2704-18-100981 is properly warranted pursuant to 19 C.F.R. § 174.24(a) as the decision protested is alleged to be inconsistent with a ruling of the Commissioner of Customs or his designee. Protestant argues that the Port’s liquidation of the subject entry contradicts Headquarters Ruling Letter (“HQ”) 956258, dated August 4, 1995, specifically, and a number of rulings reiterating its position. See, e.g. HQ 085974, dated December 28, 1989; HQ 957061, dated March 30, 1995; HQ H187716, dated December 1, 2014; HQ H228175, dated December 1, 2014; and, HQ H194735, dated April 15, 2015. Merchandise imported into the United States is classified under the HTSUS. Tariff classification is governed by the principles set forth in the General Rules of Interpretation (GRIs) and, in the absence of special language or context which requires otherwise, by the Additional U.S. Rules of Interpretation. The GRIs and the Additional U.S. Rules of Interpretation are part of the HTSUS and are to be considered statutory provisions of law for all purposes. 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, GRIs 2 through 6 may then be applied in order. GRI 6 requires that the classification of goods in the subheadings of headings shall be determined according to the terms of those subheadings, any related subheading notes and, mutatis mutandis, to GRIs 1 through 5.The 2016 HTSUS pro