Application for Further Review of Protest Number 1704-2009-100317; classification of baseball batting jerseys

HQ H078897 August 09, 2010 CLA-2 OT:RR:CTF:TCM H078897 CKG CATEGORY: Classification TARIFF NO.: 6211.33.00 Port Director U.S. Customs and Border Protection 4341 International ParkwaySuite 600Atlanta, GA 30354 RE: Application for Further Review of Protest Number 1704-2009-100317; classification of baseball batting jerseys Dear Port Director, This is in reference to the Application for Further Review (AFR) of Protest No. 1704-2009-100317, filed on June 16, 2009, on behalf of Mizuno USA, Inc. (“Protestant”) contesting Customs and Border Protection’s (CBP’s) classification and liquidation of men’s jerseys in heading 6201 of the Harmonized Tariff Schedule of the United States (HTSUS), as anoraks, windbreakers and similar articles. The subject merchandise was entered between February 8, 2008, and July 15, 2008. CBP liquidated the entries in heading 6201, HTSUS, on December 18, 2008, January 29, 2009, February 9, 2009, March 5, 2009, March 22, 2009, April 27, 2009, April 21, 2009, May 3, 2009, and May 25, 2009. Protestant claims classification in heading 6211, HTSUS, as sports apparel. Protestant previously received an adverse administrative decision from CBP in New York Ruling Letter (NY) M86998, dated November 6, 2006. FACTS: The instant protest covers a men’s jersey imported by Mizuno USA, Inc., identified as style 350139. A sample was provided to CBP for examination. Style 350139 is a man’s hip-length pullover jacket constructed from a shell composed of a woven 100% polyester micro-fiber fabric. The jacket is fully lined with a knit 100% cotton fabric. The jacket has a V-shape neckwarmer collar, a partial front opening secured by a zipper closure, long sleeves with a rib knit insert along the front and rear portion of the armholes (which Protestant states is a “Dynamic Function” cut, specifically designed for ease of arm movement while throwing or batting), elasticized sleeve cuffs, a free-hanging rear yoke that covers an additional mesh fabric lining, and an elastic drawcord tightening with adjustable toggles through the bottom hem. The Mizuno runbird logo is embroidered onto the upper rear panel and onto the lower portion of the left sleeve. ISSUE: Whether Style 350139 is classified in heading 6201, HTSUS, as an anorak, windbreaker, or similar article, or in heading 6211, HTSUS, as sports apparel. LAW AND ANALYSIS: The matter is protested 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 first entry for entries made on or after December 18, 2004.  (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. 2704-08-103801 was properly accorded to Protestant pursuant to 19 C.F.R. § 174.24 because the decision against which the protest was filed involves natters previously ruled upon by the Commissioner of Customs and Border Protection or his designee but facts are alleged or legal arguments presented which were not considered at the time of the original ruling. Classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) 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. The HTSUS provisions under consideration in this case are as follows: 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: 6201.93.35: Other . . . * * * * * 6211 Track suits, ski-suits and swimwear; other garments: Other garments, men's or boys' (con.): 6211.33.00: Of man-made fibers . . . . * * * * * The Harmonized Commodity Description and Coding System Explanatory Notes (“ENs”) constitute the official interpretation of the HTSUS at the international level. While not legally binding or dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989). The provisions of EN 61.01 apply, mutatis mutandi, to heading 6201, HTSUS. EN 61.01 provides, in pertinent part, as follows: This heading covers a category of knitted or crocheted garments for men or boys, characterised by the fact that they are generally worn over all other clothing for protection against the weather. It includes : Overcoats, raincoats, carcoats, capes including ponchos, cloaks, anoraks including skijackets, windcheaters, windjackets and similar articles, such as threequarter coats, greatcoats, hooded capes, duffel coats, trench coats, gabardines, parkas, padded waistcoats.   The provisions of EN 61.14 apply, mutatis mutandi, to heading 6211, HTSUS. EN 61.14 provides, in pertinent part, as follows: This heading covers knitted or crocheted garments which are not included more specifically in the preceding headings of this Chapter.   The heading includes, inter alia : … (5)   Special articles of apparel used for certain sports or for dancing or gymnastics (e.g., fencing clothing, jockeys’ silks, ballet skirts, leotards). * * * * * Heading 6211, HTSUS, provides for track suits, ski suits and similar garments. CBP has held that apparel used primarily in sports is classifiable in heading 6211, HTSUS, as well as headings 6112 and 6114, HTSUS. CBP considers that the term “certain” in the EN to heading 61.14 indicates that classification as “sports apparel” is limited to those articles which are, as a general matter, worn only while engaging in the activity for which they were designed. See Headquarters Ruling Letter (HQ) 957469, dated November 7, 1995. Thus, while football or baseball pants might be classifiable in heading 6211, HTSUS, such articles as tennis or rugby shorts, which are often worn off the court or playing field, would not ordinarily be classifiable as sporting apparel. Id. In determining if a particular garment is classifiable as a special article of sports apparel of headings 6114 or 6211, HTSUS, CBP has looked to whether the garment is designed to be worn while engaged in a specific sport as illustrated by its ability to serve a particular function for that sport. Such a function might include giving additional protection to the wearer, or a garment’s recognized uniqueness to that sport. Id. Finally and crucially, CBP also looks to whether the garment would be worn only while participating in the sport for which it is designed and would not ordinarily be worn at any other time. See HQ 967839, dated April 26, 2006. There are various physical characteristics present in the subject garments that indicate that they are designed for use in athletic activities, such as the vented mesh back, loose fit, rib knit shoulder inserts, and the Dynamic Function (D.F.) cut. However, they also possess features typical of garments of heading 6201, HTSUS. In a recent informed compliance publication (ICP), CBP provided basic definitions of apparel terms that are commonly utilized in the HTSUS and by the trade community. These definitions are not intended to be definitive but rather to provide a basic guideline for classification purposes. The ICP notes several features typical of jackets of heading 6201, HTSUS, which are also shared by the instant garment. These include: elasticized tightening at the wrist, an elasticized drawstring at the bottom hem, back vents, and a full interior lining. See CBP Informed Compliance Publication on Classification: Apparel Terminology under the HTSUS, dated June 2008 (Anoraks, windbreakers and similar articles). Style 350139 lacks features such as pockets or lapels which are also characteristic of garments of heading 6201, HTSUS. However, the ICP Guidelines note that possession of any three of ten listed criteria will generally indicate a jacket. Style 350139 possesses four such features, and additionally features a wind-resistant nylon shell, all of which substantially improve the ability of the jacket to provide the wearer protection against the elements, particularly when compared to the short sleeved jacket classified in heading 6211, HTSUS, in NY M86998. The physical characteristics of the instant jacket are thus consistent with outerwear of heading 6201, HTSUS. The marketing and advertising information submitted by the protestant, however, supports classification as sports clothing of heading 6211, HTSUS. The garment is described as a “batting jersey” in the importer’s product catalog, which itself bears the title “2010 Baseball and Softball” and features pictures on the cover and throughout the catalog of baseball or softball players. The product is sold in sporting goods stores alongside similar articles, also described as batting jerseys or jackets. Mizuno is also primarily known as a manufacturer of sporting goods and apparel. Taking all the factors into consideration, we do not find that the marketing information is sufficient to establish that the instant garment would only be worn while participating in the sport of baseball and would not ordinarily be worn at any other time. The physical characteristics are typical of garments of heading 6201, HTSUS, and allow the garment to be worn in a variety of circumstances, including for protection against inclement weather. Nothing in its design limits its use to baseball practice or warm-up. The only feature that could be considered specific to baseball is the D.F. cut, which provides a minor additional stretch capability not dissimilar to that provided by back pleats, also a common feature of jackets of heading 6201, HTSUS. See ICP on Apparel Terminology under the HTSUS. Style 350139 was thus correctly classified in heading 6201, HTSUS. HOLDING: By application of GRI 1, Style 350139 is classified in heading 6201, HTSUS, and is specifically provided for in subheading 6201.93.35, HTSUS, 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.” The 2009 column one, general rate of duty is 27.7% ad valorem. You are instructed to deny 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 CBP Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with the decision must be accomplished prior to mailing of the decision. Sixty days from the date of the decision the Office of International Trade will make the decision available to CBP personnel, and to the public on CBP’s website, located at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution. Sincerely, Myles B. Harmon, Director Commercial and Trade Facilitation Division