Application for Further Review of Protest No. 2720-15-150005; Classification of Men’s and Women’s Outerwear Jackets and Pants

HQ H303112 November 7, 2019 OT:RR:CTF:FTM H303112 TJS CATEGORY: Classification TARIFF NO.: 6201.93.35; 6202.93.50; 6203.43.40; 6210.40.50; 6210.50.50 Port Director Port of Los Angeles U.S. Customs and Border Protection 11099 South La Cienega Blvd. Los Angeles, CA 90045 Attn: Delana Webber, Import Specialist RE: Application for Further Review of Protest No. 2720-15-150005; Classification of Men’s and Women’s Outerwear Jackets and Pants Dear Port Director: This is in reference to the Application for Further Review (“AFR”) of Protest No. 2720-15-150005, timely filed on July 17, 2015 by Del Mar International NY Inc. (“Protestant”), on behalf of Fletcher Sports Brands Incorporated, concerning U.S. Customs and Border Protection’s (“CBP”) tariff classification of men’s and women’s outerwear jackets and pants under the Harmonized Tariff Schedule of the United States Annotated (“HTSUSA”). Review of this AFR was suspended in 2017 pending litigation at the United States Court of International Trade concerning similar merchandise. The litigation concluded with a stipulation that does not affect the classification of the merchandise under protest here. In September 2019, you provided additional fabric samples to our office. Our ruling is set forth below. FACTS: On October 15, 2014, Protestant entered fifteen styles of men’s and women’s polyester jackets and pants in headings 6201, 6202, 6203, and 6204, HTSUS. On December 16, 2014, Protestant submitted a Post Entry Amendment (“PEA”) requesting reclassification of all items as coated ski garments in heading 6210, HTSUS, or as garments of down in heading 6201, HTSUS. On December 31, 2014, CBP issued CBP Form 28, Request for Information, to Protestant requesting a sample of style ME51 Men’s Pemberton S2 Insulated Jacket. Protestant submitted a sample and a National Import Specialist (“NIS”) examined it to find that it was constructed of 100% polyester woven fabric with a visible polyurethane coating on the inner surface. Accordingly, the NIS classified style ME51 under subheading 6210.40.5020, HTSUSA. In March 2015, Protestant resubmitted the PEA. CBP granted the PEA with respect to style ME51, but denied the PEA regarding the other garments due to the lack of samples. This AFR concerns the classification of the remaining fourteen styles. The garment styles at issue are: MFV30 Men’s Vancouver Insulated Jacket, MFV31 Men’s Squamish S2 Insulated Jacket, ME53 Men’s Tantalus S2 Insulated Jacket, ME54 Men’s Big Sky S5 Insulated Jacket, MV53PD Men’s Volt S5 Down Insulated Jacket, MFV33 Men’s Radius S2 Insulated Pant, ME57 Men’s Banff S2 Insulated Pant, WFV35F Women’s Spirit S2 Insulated Jacket, WFV30 Women’s Infusion Insulated Jacket, WF50 Women’s Mirage S5 Insulated Jacket, WF51 Women’s Naquita S5 Insulated Jacket, WF53 Women’s Primadonna Insulated Jacket, WFV33 Women’s Rachel S3 Insulated Pant, and WF58 Women’s Stella S5 Insulated Pant. On May 15, 2015, CBP liquidated the entry as follows: Men’s jacket styles MFV30, MFV31, ME53, ME54, and MV53PD under subheading 6201.93.3511, HTSUSA, which provides for “Men’s or boy’s 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.” Men’s jacket style ME51 under subheading 6210.40.5020, HTSUSA, which provides for “Garments, made up of fabrics of heading 5602, 5603, 5903, 5906 or 5907: Other men’s or boys’ garments: Of man-made fibers: Other: Anoraks (including ski-jackets), wind-breakers and similar articles.” Men’s pant styles MFV33 and ME57, under subheading 6203.43.4010, HTSUSA, which provides for “Men’s or boys’ 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: Men’s. Women’s jacket styles WFV35F, WFV30, WF50, WF51, and WF53 under subheading 6202.93.5011, HTSUSA, 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: Other: Women’s.” Women’s pant styles WFV33 and WF58 under subheading 6204.63.3510, HTSUSA, which provides for “Women’s or girls’ suits, ensembles, suit-type jackets, blazers, dresses, skirts, divided skirts, 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: Other: Trousers and breeches: Women’s.” Protestant provided two samples with this protest: a red ME54 Men’s Big Sky S5 Insulated Jacket and a pair of orange WFV33 Women’s Rachel S3 Insulated Pants. Style ME54 is a men’s hip-length jacket constructed from 100% polyester, woven fabric visibly coated with plastic on the inside surface. The insulated and lined jacket features sealed seams and a full front opening with a weatherproof, zipper closure that extends to the top of a stand up collar. The jacket also contains an inner storm flap, a fully adjustable and removable hood, long hemmed sleeves with hook and loop tabs and inner protective, thumbhole cuffs, articulated elbows, zippered underarm vents, zippered breast pocket, zippered pockets below the waist, adjustable powder skirt, and a hemmed bottom threaded with an elastic cord fitted with locks for tightening. Product specification sheets and pictures provided by Protestant indicate that the remaining jackets, men’s styles MFV30, MFV31, ME53, and MV53PD, and women’s styles WFV35F, WFV30, WF50, WF51, and WF53 are also hip-length, insulated and lined jackets that share similar features as style ME54. According to the product specification sheets, most of the jackets include sealed seams, water repellent zippers, underarm ventilation with mesh inserts, an inside goggle cleaner with MP3 pocket, custom hardware, a detachable and adjustable hood, Lycra cuffs with thumbholes, an adjustable hem drawcord, and a powder skirt with elastic. It does not appear that style WF53 contains water repellant zippers, sealed seams, or underarm vents. Additionally, the WFV35F jacket features a removable fur hood trim. Style WFV33 is a pair of women’s trousers constructed from 100% polyester, woven fabric visibly coated with plastic on the inside surface. The insulated and lined trousers feature sealed seams, a zipper fly with hook and bar, and snap closures, hook and loop, adjustable waist tabs, weatherproof, zippered pockets, and long, hemmed legs with elasticized, hidden leg sleeves. Product specification sheets and pictures provided by Protestant indicate that the remaining pants, men’s styles MFV33 and ME57, and women’s style WF58, are also insulated and lined trousers that feature sealed seams and leg gaiters with gripper elastic tape. Style MFV33 also contains water repellent zippers, leg ventilation with mesh inserts, zippered cuff bottom openings, and articulated knee construction. Style ME57 offers handwarmer pockets, leg ventilation zippers, ½” reinforced grosgrain tape at the hem, articulated knee construction, and an adjustable waistband. Style WF58 features belt loops, a side cargo pocket, front and back covered welts, and an adjustable waistband. ISSUE: What is the tariff classification of the men’s and women’s outerwear jackets and pants? 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 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 2014 HTSUSA provisions under consideration are the following: 6201: Men’s or boy’s 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: 6201.93.1000: Containing 15 percent or more by weight of down and waterfowl plumage and of which down comprises 35 percent or more by weight; containing 10 percent or more by weight of down… Other: Other: Other: 6201.93.35: Other: 6201.93.3511: Men’s… * * * * * 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: Anoraks (including ski-jackets), windbreakers and similar articles (including padded, sleeveless jackets): 6202.93: Of man-made fibers: Other: Other: Other: 6202.93.50: Other: 6202.93.5011: Women’s… * * * * * 6203: Men’s or boys’ 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: Other: Other: 6203.43.40: Other: Trousers and breeches: 6203.43.4010: Men’s… * * * * * 6204: Women’s or girls’ suits, ensembles, suit-type jackets, blazers, dresses, skirts, divided skirts, trousers, bib and brace overalls, breeches and shorts (other than swimwear): Trousers, bib and brace overalls, breeches and shorts: 6204.63: Of synthetic fibers: Other: Other: Other: Other: 6204.63.35: Other: Trousers and breeches: 6204.63.3510: Women’s… * * * * * 6210: Garments, made up of fabrics of heading 5602, 5603, 5903, 5906 or 5907: 6210.40: Other men’s or boys’ garments: Of man-made fibers: 6210.40.50: Other: 6210.40.5020: Anoraks (including ski-jackets), wind-breakers and similar articles… Trousers, breeches and shorts: 6210.40.5031: Ski/snowboard pants… 6210.40.5039: Other… 6210.50: Other women’s or girls’ garments: Of man-made fibers: 6210.50.50: Other: 6210.50.5020: Anoraks (including ski-jackets), wind-breakers and similar articles… Trousers, breeches and shorts: 6210.50.5039: Other… * * * * * Note 5 to Chapter 62 provides: 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. * * * * * Statistical Note 4 to Chapter 62 provides: For the purpose of statistical reporting numbers subheadings 6203.43.35.10, 6204.63.3010, 6210.40.5031 and 6210.50.5031, the term “ski/snowboard pants” means ankle-length pants made of synthetic fabrics with or without insulation for cold weather protection, with pockets, at least one of which has a zippered or hook and loop closure, sealed seams at the front (up to the zipper or other means of closure) and back rise, hidden leg sleeves with a means of tightening at the ankle, and with one or more of the following: side openings, scuff guards or reinforcement in the seat. A sealed seam is that is sealed by means of taping, gluing, bonding, cementing, fusing or similar process so that air and water cannot pass through. * * * * * In addition, the Explanatory Notes (“EN”) to the Harmonized Commodity Description and Coding System represent the official interpretation of the tariff at the international level. While neither 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, 35128 (Aug. 23, 1989). EN 62.10 provides, in relevant part, as follows: 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. * * * * * Protestant is contesting CBP’s classification and liquidation of all garment styles excluding ME51 as discussed above. Protestant provided samples of styles ME54 and WFV33, but stated it was unable to provide additional samples because the garments are seasonal and are no longer in stock. Instead, Protestant claims the provided samples are similar to the remaining garments. In support of its position, Protestant provided product specification sheets, Bills of Materials, and water resistance test reports for certain fabrics that make up the garments. Protestant also provided swatches of two fabrics used to manufacture some of the garments. Protestant’s classification arguments can be divided into two categories: (1) garments classifiable in heading 6210, and (2) down jackets. We address each below. Garments Classifiable in Heading 6210 We first consider Protestant’s argument that styles MFV50, MFV31, ME53, ME54, MFV33, ME57, WFV35F, WFV30, WF50, WF51, WFV33, and WF58 should be classified in heading 6210, HTSUS, which requires the garments be made up of fabrics of heading 5602, 5603, 5903, 5906, or 5907. A review of the enumerated headings indicates that the only heading applicable to the garments at issue is heading 5903, HTSUS. Heading 5903, HTSUS, provides for the classification of “[t]extile fabrics impregnated, coated, covered or laminated with plastics, other than those of heading 5902.” According to Note 2(a)(1) to Chapter 59, in order for a fabric to be considered coated within the meaning of heading 5903, HTSUS, the coating must be visible to the naked eye (whatever the nature of the plastic material), but no account is to be taken of changes in color. Therefore, in order to determine whether these garments are classifiable in heading 6210, HTSUS, we must determine whether they are made up of textile fabric that is visibly coated with plastic. See Headquarters Ruling Letter (“HQ”) 967884 (Oct. 26, 2005); and HQ 087852 (Nov. 27, 1990). Furthermore, according to Note 5 to Chapter 62, garments which are, prima facie, classifiable both in heading 6210 and in other headings in Chapter 62, excluding heading 6209, are to be classified in heading 6210. Therefore, if it is determined that the garments are classifiable in heading 6210, it is not necessary to examine classification in headings 6201, 6202, 6203, or 6204. We discuss the classification arguments of each garment below. ME54 Men’s Big Sky Jacket Style ME54 Men’s Big Sky Jacket was liquidated under subheading 6201.93.3511, HTSUSA, as men’s jackets of man-made fibers. Protestant asserts that these jackets are properly classified under subheading 6210.40.5020, HTSUSA, as men’s jackets made up of fabrics of heading 5602, 5603, 5903, 5906 or 5907. An examination of the sample’s outer shell revealed that it is constructed from fabric that is visibly coated with plastic on the inside surface. The Bill of Materials (“BOM”) for style ME54 identifies this fabric as 52146HDLT, made of 100% polyester. Thus, fabric 52146HDLT is a fabric of heading 5903, HTSUS. Because style ME54 is a garment made up of fabric of heading 5903, it is classifiable in heading 6210, HTSUS. In particular, the ME54 Men’s Big Sky Jacket is classified under subheading 6210.40.5020, HTSUSA. WFV33 Women’s Rachel Pant Style WFV33 Women’s Rachel Pant was liquidated under subheading 6204.63.3510, HTSUSA, as women’s trousers of synthetic fibers. Protestant asserts classification of these pants under subheading 6210.40.5031, HTSUSA, which provides for “Garments, made up of fabrics of heading 5602, 5603, 5903, 5906 or 5907: Other men’s or boys’ garments: Of man-made fibers: Other: Trousers, breeches and shorts: Ski/snowboard pants.” As above, we first determine whether the pants are classifiable in heading 6210, HTSUS, as garments made up of fabrics of heading 5903. An examination of the provided sample revealed that the pants are made of fabric that is visibly coated with plastic on the inside surface. The BOM identifies this fabric as 100% polyester LPO-9002, available in solid or printed. As such, LPO-9002 is a fabric of heading 5903, HTSUS. Style WFV33 is thus classifiable in heading 6210, HTSUS, as a garment made up of fabric of heading 5903. Second, we note that because style WFV33 is constructed for women, it is classified under 6210.50, not 6210.40, HTSUS, which covers men’s or boys’ garments. Last, we consider whether the pants are “ski/snowboard pants” as defined by Statistical Note 4 to Chapter 62. According to Statistical Note 4, “ski/snowboard pants” must have one or more of the following: side openings, scuff guards, or reinforcement in the seat. After examining the sample, we find that while the trousers have the requisite sealed seams, pockets with at least one with a zipper closure, and a hidden leg sleeve with a means of tightening at the ankle, they do not have side openings, scuff guards, or reinforcement in the seat. Because the trousers lack these features, they cannot be considered “ski/snowboard pants.” Thus, the WFV33 Women’s Rachel Pant is classified under subheading 6210.50.5039, HTSUSA, as “Garments, made up of fabrics of heading 5602, 5603, 5903, 5906 or 5907: Other women’s or girls’ garments: Of man-made fibers: Other: Trousers, breeches and shorts: Other.” Men’s Jacket Styles: MFV30 Vancouver, MFV31 Squamish, and ME53 Tantalus Men’s jacket styles MFV30 Vancouver, MFV31 Squamish, and ME53 Tantalus were liquidated under subheading 6201.93.3511, HTSUSA, as men’s jackets of man-made fibers. Protestant asserts that these jackets are properly classified under subheading 6210.40.5020, HTSUSA, claiming they are similar to style ME54 that was provided as a sample. The BOM for style MFV30 shows it is constructed from fabric styles LPO-9002 and LNT-11138A, but does not indicate how the fabrics are combined to form the jacket. We examined LPO-9002 in the WFV33 Women’s Rachel Pant sample, but Protestant has not provided information on fabric LNT-11138A. Without a sample or additional information, we cannot determine whether LNT-11138A is a fabric of heading 5602, 5603, 5903, 5906 or 5907. Accordingly, we are unable to make a classification determination and substantiate Protestant’s claim that style MFV30 Men’s Vancouver Jacket is classified in heading 6210, HTSUS. Thus, it will remain classified under subheading 6201.93.3511, HTSUSA, as entered. The BOM for style MFV31 shows it is also made from LPO-9002, which has been determined to be a fabric of heading 5903, HTSUS. Thus, the jacket is classifiable in heading 6210, HTSUS, as a garment made up of fabric of heading 5903. In particular, the MFV31 Men’s Squamish Jacket is classified under subheading 6210.40.5020, HTSUSA. Per its BOM, style ME53 is manufactured in a combination of fabric styles 52146HDLT (bottom part of body/sleeves) and LPW-11053 (hood/top part of body/collar/shoulders). We examined 52146HDLT in the ME54 sample and determined it to be a visibly coated fabric of heading 5903, HTSUS. Furthermore, as discussed above, a sample of style ME51 was previously examined by an NIS who deter