Application for Further Review of Protest No 3001-11-100128; Women’s Rain Garments

HQ H159096 September 9, 2013 CLA-2 OT:RR:CTF:TCM H159096 TNA CATEGORY: Classification TARIFF NO.: 6202.13.40 Port Director, Tacoma Port of Entry U.S. Customs and Border Protection 2202 Port of Tacoma RoadTacoma, WA 98421 Attn: Grace Carmichael, Import Specialist Re: Application for Further Review of Protest No: 3001-11-100128; Women’s Rain Garments Dear Port Director: The following is our decision regarding the Application for Further Review (“AFR”) of Protest No. 3001-11-100128, timely filed on March 9, 2011, on behalf of Item House, Inc. (“Item House” or “Protestant”). The AFR concerns the classification of women’s rain garments under the Harmonized Tariff Schedule of the United States (HTSUS). In reaching our decision, we have taken into consideration additional information supplied to staff of this office during a teleconference on July 11, 2011, as well as in a supplemental submission dated July 21, 2011. FACTS: The subject merchandise is a woven rain garment for women, manufactured by the “Kristen Blake” label as style 74340. It is of mid-thigh length and has a permanent hood with a drawcord. The garment is made of three layers: an outer shell, an insulated filling and a woven lining. The outer shell is composed of multiple vertical panels with some degree of tailoring. It consists of laminated three-layer fabric, made of a woven face composed of 94% polyester and 6% spandex; a thermoplastic polyurethane (“TPU”) breathable, waterproof, plastic membrane; and a nylon tricot backing, which is a layer of insulating filling material that is quilted to the woven lining. Each layer is a thin one, and together they form a lightweight outer garment that is worn over a user’s regular clothing. The outer shell’s laminated three layer fabric is produced by Dry-Tex Lamination textile Co., Ltd., a company based in China. The subject merchandise has a zippered opening in the front that runs the length of the garment, a storm flap that is secured by five snaps, a chest pocket with a flap secured by a snap, and two patch pockets below the waist that have a flap with a snap closure. Each sleeve also has a vent that is not visible when the end of the sleeve is closed with the snap. Protestant submitted a laboratory report performed by SGS-CSTC Standards Technical Services Co., Ltd., an inspection, verification, testing and certification company, which concludes that the subject garment is water resistant. The sample was not tested by a CBP laboratory. However, a sample of the subject merchandise was received and examined by this office. The subject merchandise was entered at the Port of Tacoma on July 8, 2010, under subheading 6202.93.45, HTSUS, which 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.” U.S. Customs and Border Protection (“CBP”) liquidated the merchandise on September 10, 2010, in subheading 6202.13.40, HTSUS, as “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: Overcoats, carcoats, capes, cloaks and similar coats: Of man-made fibers: Other: Other.” Item House filed its protest on March 9, 2011, claiming classification under subheading 6210.50.50, HTSUS, which provides for “Garments, made up of fabrics of heading 5602, 5603, 5903, 5906 or 5907: Other women’s or girls’ garments: Of man-made fibers: Other.” In the alternative, Item House requests classification as entered in subheading 6202.93.45, HTSUS. ISSUE: What is the classification of the subject rain garment? LAW AND ANALYSIS: Initially, we note that the matter protested 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 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. 3001-11-100128 is properly accorded to Protestant pursuant to 19 C.F.R. § 174.24(b) because it is alleged to involve questions of law or fact which have not been ruled upon by the Commissioner of Customs or his designee or by the Customs courts. Specifically, the Protestant argues that CBP has not determined whether a garment with the particular combination of features that the subject garment possesses is classified as an anorak or similar garment. 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 HTSUS provisions under consideration are as follows: 6202 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: Overcoats, carcoats, capes, cloaks and similar coats: 6202.13 Of man-made fibers: Other: 6202.13.40 Other: Raincoats: 6202.13.4005 Women’s Anoraks (including ski-jackets), windbreakers and similar articles (including padded, sleeveless jackets): 6202.93 Of man-made fibers: Other: Other: Other: 6202.93.4500 Water resistant * * * * * * 6210 Garments, made up of fabrics of heading 5602, 5603, 5903, 5906 or 5907: 6210.50 Other women’s or girls’ garments: Of man-made fibers: 6210.50.50 Other 6210.50.5020 Anoraks (including ski-jackets), windbreakers and similar articles (635) Note 1 to Chapter 59, HTSUS, states the following: Except where the context otherwise requires, for the purposes of this chapter the expression "textile fabrics" applies only to the woven fabrics of chapters 50 to 55 and headings 5803 and 5806, the braids and ornamental trimmings in the piece of heading 5808 and the knitted or crocheted fabrics of headings 6002 to 6006. Note 2 to Chapter 59, HTSUS, states, in pertinent part, the following: Heading 5903 applies to: (a) Textile fabrics, impregnated, coated, covered or laminated with plastics, whatever the weight per square meter and whatever the nature of the plastic material (compact or cellular), other than: (1) Fabrics in which the impregnation, coating or covering cannot be seen with the naked eye (usually chapters 50 to 55, 58 or 60); for the purpose of this provision, no account should be taken of any resulting change of color; (2) Products which cannot, without fracturing, be bent manually around a cylinder of a diameter of 7 mm, at a temperature between 15ºC and 30ºC (usually chapter 39); (3) Products in which the textile fabric is either completely embedded in plastics or entirely coated or covered on both sides with such material, provided that such coating or covering can be seen with the naked eye with no account being taken of any resulting change of color (chapter 39); (4) Fabrics partially coated or partially covered with plastics and bearing designs resulting from these treatments (usually chapters 50 to 55, 58 or 60); (5) Plates, sheets or strip of cellular plastics, combined with textile fabric, where the textile fabric is present merely for reinforcing purposes (chapter 39); or (6) Textile products of heading 5811. Note 5 to Chapter 62, HTSUS, states, in pertinent part, the following: Garments which are, prima facie, classifiable both in heading 6210 and in other headings of this chapter, excluding heading 6209, are to be classified in heading 6210. The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System. While not legally binding nor 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 (Aug. 23, 1989). The EN to heading 5903, HTSUS, states, in pertinent part: This heading covers textile fabrics which have been impregnated, coated, covered or laminated with plastics (e.g., poly(vinyl chloride)).   Such products are classified here whatever their weight per m² and whatever the nature of the plastic component (compact or cellular), provided:   (1)   That, in the case of impregnated, coated or covered fabrics, the impregnation, coating or covering can be seen with the naked eye otherwise than by a resulting change in colour.   Textile fabrics in which the impregnation, coating or covering cannot be seen with the naked eye or can be seen only by reason of a resulting change in colour usually fall in Chapters 50 to 55, 58 or 60. Examples of such fabrics are those impregnated with substances designed solely to render them creaseproof, mothproof, unshrinkable or waterproof (e.g., waterproof gabardines and poplins). Textile fabrics partially coated or partially covered with plastics and bearing designs resulting from these treatments are also classified in Chapters 50 to 55, 58 or 60.   (2)   That the products are not rigid, i.e., they can, without fracturing, be bent manually around a cylinder of a diameter of 7 mm, at a temperature between 15 ºC and 30 ºC.   (3)   That the textile fabric is not completely embedded in, nor coated or covered on both sides with, plastics.   Products not meeting the requirements of subparagraph (2) or (3) above usually fall in Chapter 39. However, textile fabric coated or covered on both sides with plastics where the coating or covering cannot be seen with the naked eye, or can be seen only by reason of a resulting change in colour, usually falls in Chapters 50 to 55, 58 or 60. Except in the case of textile products of heading 58.11, textile fabrics combined with plates, sheets or strip of cellular plastics, where the textile fabric is present merely for reinforcing purposes, are also classified in Chapter 39 (see the General Explanatory Note to Chapter 39, part entitled “Plastics and textile combinations”, penultimate paragraph).   The laminated fabrics of this heading should not be confused with fabrics which are simply assembled in layers by means of a plastic adhesive. These fabrics, which have no plastics showing in crosssection, generally fall in Chapters 50 to 55. The EN to heading 6102, HTSUS, states, in pertinent part: The provisions of the Explanatory Note to heading 61.01 apply mutatis mutandis to the articles of this heading. The EN to heading 6101, HTSUS, states, in pertinent part: 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 heading does not include :   (a) Garments of heading 61.03.   (b) Garments made up of knitted or crocheted fabrics of heading 59.03, 59.06 or 59.07 (heading 61.13). The EN to heading 6202, HTSUS, provides, in pertinent part: The provisions of the Explanatory Note to heading 61.02 apply, mutatis mutandis, to the articles of this heading.   However, the heading does not cover garments made up of fabrics of heading 56.02, 56.03, 59.03, 59.06 or 59.07 (heading 62.10). The EN to heading 6210, HTSUS, provides, in pertinent part: With the exception of babies’ garments of heading 62.09, this heading covers all garments made up of felt or nonwovens, whether or not impregnated, coated, covered or laminated, or of textile fabrics (other than knitted or crocheted fabrics) of heading 59.03, 59.06 or 59.07, without distinction between male or female wear.   The heading includes raincoats, oilskins, divers’ suits and antiradiation protective suits, not combined with breathing apparatus.   It should be noted that articles which are, prima facie, classifiable both in this heading and in other headings of this Chapter, excluding heading 62.09, are to be classified in this heading (see Chapter Note 5).   The heading does not include:   (a)   Garments of paper, cellulose wadding or webs of cellulose fibres (heading 48.18).   (b)   Garments made from the quilted textile products in the piece of heading 58.11 (generally heading 62.01 or 62.02). See Subheading Explanatory Note at the end of the General Explanatory Notes to this Chapter.   (c)   Clothing accessories (e.g., gloves, mittens and mitts of heading 62.16). I. Classification under heading 6210, HTSUS, as a garment made up of fabrics of heading 5903, HTSUS. Protestant requests classification in heading 6210, HTSUS, as a garment of the fabrics of heading 5903, HTSUS, which provides for, in relevant part, “Textile fabrics impregnated, coated, covered or laminated with plastics, other than those of heading 5902.” Protestant argues that the fabric of the subject merchandise’s outer shell has a visible plastic coating, which results in the classification of the fabric in heading 5903, HTSUS. Citing Legal Note 1 to Chapter 59, HTSUS, Protestant notes that the fabric of the outer shell of the subject merchandise is a woven fabric, which constitutes a “textile fabric.” Counsel argues that as a result, the subject merchandise satisfies Legal Note 1 and the analysis can move to Chapter Note 2(a) to Chapter 59, HTSUS. Note 2(a) provides that merchandise composed of a textile fabric that has been impregnated, coated, covered or laminated with a plastic material that cannot be seen with the naked eye, is precluded from classification in heading 5903, HTSUS. Protestant argues that a significant amount of plastic has been added to the fabric, such that the plastic membrane laminated to the fabric can be seen with the naked eye. Protestant states that the coating fills the interstices and blurs the yarns, and that as such, the fabric of the outer shell is classifiable in heading 5903, HTSUS, as a textile fabric, impregnated, coated, covered or laminated with plastics. Protestant cites NY H88669, dated March 13, 2002, NY H88659, dated March 14, 2002, and NY I81526, dated June 6, 2002, to establish that the Drytex bonded fabric with which the shell of the subject merchandise is made is classifiable in heading 5903, HTSUS, as a coated fabric. Protestant also relies on Note 5 to Chapter 62, HTSUS, which directs classification in heading 6210, HTSUS, when merchandise can be classified in both heading 6210, HTSUS, and another heading of Chapter 62, HTSUS (with the exception of heading 6209, HTSUS). Thus, Protestant argues that if the subject merchandise is described by the terms of both headings 6202 and 6210, HTSUS, it should be classified in heading 6210, HTSUS. In response, we note that in order for a textile fabric to be classified in heading 5903, HTSUS, the plastic that is impregnated, coated, covered or laminated into the fabric must be visible to the naked eye without the use of magnification. See Note 2(a)(1) to Chapter 59, HTSUS and EN 59.03. Where fabrics have been assembled in layers, such as with the subject merchandise, the plastic must be visible to the naked eye when a cross-section of the fabric is examined. See Note 2(a)(1) and Note 2(a)(3) to chapter 59 and EN 59.03; see also HQ H140998, dated May 22, 2013; HQ W968304, dated December 1, 2006; NY L88985, dated March 21, 2006; NY N003293, dated January 24, 2007. This visibility must occur without any manipulation of the fabric or garment. Thus, fabric whose plastic can only be seen by a change in color wrought by the plastic is excluded from heading 5903, HTSUS. In the present case, the surface of the garment and the cross-section were examined, and we disagree with Protestant that the plastic is visible to the naked eye. There is no sheen on the outer surface, and the plastic does not fill the interstices. As such, no plastic coating is visible in either cross-section or on the surface. As a result, we find that Style 74340 cannot be classified as being made up of fabric of heading 5903, HTSUS. Therefore, it is precluded from classification in heading 6210, HTSUS. Furthermore, we note that NY H88669, NY H88659, and NY I81526, to which Protestant cites, do not support Protestant’s position. First, the merchandise at issue in these rulings consisted of one layer of fabric and a plastic film. By contrast, Style 74340 is made from a lamination of two layers of textile fabric and a layer of plastic. As a result, the cross-section visibility requirement, while examined for Style 74340, was not at issue in NY H88669, NY H88659, and NY I81526. See NY H88669; NY H88659; NY I81526. Furthermore, while some of the items at issue in these rulings were classified in heading 6210, HTSUS, the items that are most similar to Style 74340 were classified in either heading 6202, HTSUS, or in heading 6201, HTSUS, whose provisions mirror those of heading 6202, HTSUS, except that they provide for men’s clothing rather than women’s. For example, in NY H88659, CBP classified item I9015 B/O, a reversible raincoat made of a woven nylon fabric not visibly coated in plastic in heading 6202, HTSUS. Other similar items in this ruling, such as item I3964, a hip length jacket with a woven shell fabric and the Lepaz Winter Parka, a thigh-length jacket with a woven outer shell and waterproof coating, were classified in heading 6201, HTSUS. See NY H88659. As a result, these rulings do not support classification of the subject merchandise in heading 6210, HTSUS, and we consider alternative classifications. II. Classification in heading 6202, HTSUS, as an anorak In the alternative, Protestant requests classification as entered in subheading 6202.93.45, HTSUS, as a women’s anorak. At the four-digit level, heading 6202, HTSUS, provides for “Women’ or girls’ overcoats, carcoats, capes, cloaks, anoraks (including ski-jackets), windbreakers and similar articles (including padded, sleeveless jackets), other than those of heading 6204.” Generally, this heading covers the type of knitted or crocheted garments that are worn over all other clothing for protection against the weather. See EN 62.02; EN 61.02. However, none of the terms listed in heading 6202, HTSUS, are defined by any of the relevant tariff headings, legal notes or ENs. As a result, CBP is permitted to consult dictionaries and other lexicographic materials to determine the term’s common meaning. See, e.g., Lonza, Inc. v. United States, 46 F.3d 1098 (Fed. Cir. 1995). The term in question is then construed in accordance with its common and commercial meanings, which are presumed to be the same. See, e.g., Nip