CLA-2 CO:R:C:T 954824 SK
Regional Commissioner
U.S. Customs Service
6 World Trade Center, Room 761
New York, New York 10048-0945
RE: Decision on Application for Further Review of Protest No. 1001-
93-100250; classification of women's cotton woven hooded shirts;
6211.42.0054, HTSUSA; not a jacket of heading 6202; excluded from
heading 6206; HRL's 952927 (1/27/93); 953251 (2/8/93); 953109
(2/24/93); 953457 (4/16/93); 950777 (3/15/92); NYRL 885881
(5/17/93); DD 876455 (7/30/92); 19 CFR 174.28; 19 U.S.C.
1514(a)(4)); timeliness of redelivery notice.
Dear Sir:
This is a decision on application for further review of a
protest timely filed by the law firm of Singer & Singh, on behalf
of their client, Regarde Bien Ltd., on January 14, 1993, against
your demand for redelivery of women's cotton woven hooded garments.
On May 21, 1993, counsel for Regarde Bien Ltd. submitted additional
written grounds to be considered for allowing the aforementioned
protest, pursuant to section 174.28, Customs Regulations (19 CFR
174.28), such grounds being ancillary to the arguments set forth
in the protestant's original submission.
Protestant also claims that the importer relied to its
detriment on District Ruling 877853, dated September 25, 1992, and
petitions this office for relief pursuant to section 177.9(d)(3),
Customs Regulations (19 CFR 177.9(d)(3)).
Samples of the subject merchandise have been submitted for
Customs' examination.
FACTS:
The merchandise under review is comprised of hooded, woven
cotton garments. Although no style numbers were expressly
identified in protest 1001-93-100250, various entry forms,
invoices and redelivery notices identify the affected style numbers
as 5011, 5022 and 5988. This office contacted counsel for the
importer and learned that style numbers 5011 and 5022 are the
specific garment styles the subject of this protest. The garments
are exported from India.
Customs is in possession of two samples of style 5011 (one
is made from woven cotton, the other from woven brushed flannel
cotton). We do not have a sample of style 5022. However, as a
detailed description of style 5022 indicates that it is similar to
style 5011 in all material respects, except for the presence of a
zipper closure that extends halfway down the front of the garment,
both styles will be included in this review.
Style 5011 is made of woven cotton and features long sleeves
with elasticized cuffs, a drawstring at the bottom, a partial V-
neck opening secured by a drawstring and two side pockets at the
waist. The garment has a hood and a partial lining that extends
from the top of the hood to the middle of the back.
Style 5022 is also made of woven cotton and features long
sleeves with elasticized cuffs. The cuffs have two buttons and
flap closures. There is a braided drawstring at the bottom of the
garment with plastic bells at the ends. The garment is hooded and
has a partial lining that extends from the top of the hood to the
middle of the back. The front of the garment has an opening that
extends half way down the front and has a zipper closure as well
as a placket closure that extends to the bottom of the garment.
The garment is closed by a 2-1/2 inch flap along with two buttons.
The garment has two side pockets.
Eight different shipments of merchandise were entered and
released on October 16 through November 2, 1992. At this time
samples were pulled and the garments were classified as jackets
under subheading 6202.92.2060, Harmonized Tariff Schedule of the
United States Annotated (HTSUSA), with an attendant textile quota
category of 335.
Subsequently, the port discovered that there were two
precedent rulings on identical merchandise that did not agree; one
classified the merchandise as jackets and the other as shirts
under subheading 6211.42.0050, HTSUSA. An identical sample from
another importer was sent to the national import specialist with
a Customs Form 6431 (for internal use between field import
specialist and national import specialist to report classification
information). The national import specialist was requested to
determine which of the precedent rulings should be adopted and
which should be revoked.
The national import specialist determined that the subject
garments should be classified as shirts under subheading
6211.42.0050, HTSUS, with a textile quota category of 341. Notices
of Redelivery were sent out to the protestant on December 28, 1992,
for 4 of the entries; the other four Redelivery Notices were sent
out on December 29, 1992. The protest was timely filed on January
14, 1993. The decision to issue a Notice of Redelivery is
protestable under the Customs protest statute (see 19 U.S.C.
1514(a)(4)).
Protestant makes three claims with regard to the transactions
described above:
1) protestant asserts that the garments are properly classified as
jackets, under subheading 6202.92.2060, HTSUSA, as originally
entered;
2) protestant claims that the redelivery notices at issue are
inconsistent with 19 CFR 113.62(d) which requires that any demand
for redelivery be made within 30 days of the date that the
merchandise was released; and
3) counsel submits that its client, Regarde Bien Ltd., relied to
its detriment on District Ruling (DD) 887853, dated September 25,
1992, in placing orders for the merchandise the subject of the
eight entries made between October 16 and November 2, 1992, and
that relief be granted Regarde Bien Ltd., pursuant to 19 CFR
177.9(d)(3).
ISSUES:
Whether the Notices of Redelivery were timely?
Whether styles 5011 and 5022 are classifiable as jackets of
heading 6202, HTSUSA, or as shirts under heading 6211, HTSUSA?
Whether Regarde Bien Ltd. reasonably relied to its detriment
on DD 877853 so as to warrant relief under 19 CFR 177.9(d)(3)?
LAW AND ANALYSIS:
- TIMELINESS OF THE REDELIVERY NOTICES -
The Customs Regulations governing this issue are found in 19
CFR 141.113 and 113.62. Paragraph (b) of section 141.113 provides
as follows:
If at any time after entry the district director finds that
any merchandise contained in an importation is not entitled
to admission into the commerce of the United States for any
reason not enumerated in paragraph (a) of this section
[relating to various marking and labeling requirements], he
shall promptly demand the return to Customs custody of any
such merchandise which has been released.
Paragraph (f) of section 141.113 contains a time limitation
for demands for the return of merchandise to Customs custody under
section 141.113. Under this provision:
A demand for the return of merchandise to Customs custody
shall not be made after the liquidation of the entry covering
such merchandise shall become final.
Section 113.62 contains the basic importation and entry bond
conditions. Under paragraph (c) of this provision:
It is understood that any demand for redelivery will be made
no later than 30 days after the date that the merchandise was
released or 30 days after the end of the conditional release
period (whichever is later).
Recently, the interpretation of these provisions has been
thoroughly considered (see rulings HRL 224712, dated January 11,
1994; HRL 088880, dated March 19, 1992; and HRL's 224566 and
951300, both dated August 3, 1993). It is now Customs position
that a Notice of Redelivery must be "promptly" issued (see C.S.D.
90-99, 89-100 and 86-21). (Copies of the cited rulings and
C.S.D.'s are enclosed for your information.)
It is Customs position that 19 CFR 141.113(b) has a time
limitation of "promptness" (i.e. 30 days), despite the broad
drafting of the Customs Regulation. It is Customs position that
a Notice of Redelivery is not timely when it is issued more than
30 days after release of the merchandise by Customs and no Request
for Information (Customs Form 28) is issued or any other action is
taken to establish a different conditional release period.
Further, a recent Notice of Proposed Rule Making was published
in the Federal Register (59 FR 14808, dated March 30, 1994) to
establish a conditional release period for textile and textile
products that are subject to quotas. This rule is proposed to
allow Customs to issue notices of redelivery to importers of
textiles or textile products for a period of up to 30 days after
the end of the conditional release period if it is discovered that
the merchandise was imported in violation of visa or quota
restrictions. The notice states that currently "Customs may issue
a Notice of Redelivery only within 30 days after release of the
merchandise."
In this case, Request for Information was not sent to the
protestant and no conditional release period was established. The
merchandise was classified according to precedent and released.
The Notice of Redelivery was not sent until approximately 60 days
after the release of the merchandise. Therefore, the protest
against the Notice of Redelivery for these entries must be granted.
- CLASSIFICATION -
As the protest against the Notice of Redelivery for the eight
entries at issue is granted, the classification portion of this
ruling does not determine the disposition of this case. We set
forth the following classification analysis in an advisory
capacity.
Classification of merchandise under the HTSUSA is governed by
the General Rules of Interpretation (GRI's). GRI 1 provides that
classification shall be determined according to the terms of the
headings and any relative section or chapter notes, taken in order.
Merchandise that cannot be classified in accordance with GRI 1 is
to be classified in accordance with subsequent GRI's.
At issue is whether styles 5011 and 5022 are deemed jackets
or shirts for purposes of classification within the tariff
schedule. Customs' position with regard to this type of garment
is well established; this office has consistently held that hooded
garments with partial neck openings, long sleeves, elasticized
cuffs and similar fabric weights are classifiable as shirts, either
under headings 6205 or 6211, HTSUSA, depending upon the location
of any existing pockets. See New York Ruling Letters (NYRL's)
856030 (9/26/90); 874036 (5/27/92); 885881 (5/17/93); 886635
(6/21/93); District Ruling (DD) 876455 (7/30/92) and Headquarters
Ruling Letters (HRL's) 950777 (3/5/92); 952024 (9/15/92); 952927
(1/27/93); 953251 (2/8/93); 953457 (4/16/93). Garments similar
to those at issue have recently enjoyed a resurgence in popularity
and there are several rulings on this type of merchandise which
were issued in 1993, after the importer had already made purchase
orders for these styles. We note, however, that as early as 1990,
and in at least four other rulings issued in 1992, prior to the
importer's alleged reliance on DD 887853, Customs had also
classified similar garments as shirts.
Heading 6202, HTSUSA, provides for, inter alia, anoraks,
windbreakers and similar articles. The Explanatory Notes to the
Harmonized Commodity Description and Coding System (EN), the
official interpretation of the HTS at the international level,
state in regard to heading 6202 that the garments of this heading
are generally characterized "by the fact that they are generally
worn over other clothing for protection against the weather."
Although styles 5011 and 5022 are of a design often associated with
anoraks, we are not of the opinion that these garments are of the
type "generally worn over other clothing for protection against the
weather." Styles 5011 and 5022 are constructed of a relatively
lightweight, unlined, shirting fabric that offers minimal
protection to the wearer from the elements.
Where some ambiguity exists as to the identity of a garment
for classification purposes, or where a garment possesses features
of more than one type of garment (i.e., shirt and jacket),
reference to The Guidelines for the Reporting of Imported Products
in Various Textile and Apparel Categories, CIE 13/88, may provide
assistance in the classification of garments for purposes of
assigning textile quota categories and ensuring uniformity in the
classification of garments under the HTSUSA. Where reliance on
the Guidelines would lead to an unreasonable conclusion, Customs
need not rely on this document. See HRL 952927.
On page six of the Guidelines, various characteristics
normally associated with jackets are listed. Among the "jacket"
features enumerated are pockets at or below the waist, elasticized
cuffs and drawstring waistbands. Although these three features are
all present on styles 5011 and 5022, this office believes
classification as jackets would lead to an unreasonable result.
We deem the weight of the fabric used in the construction of these
garments as a compelling factor that overrides the presence of
jacket features and helps define these garments' use. The unlined
cotton shirting fabric used in the manufacture of styles 5011 and
5022, especially when these garments are made from brushed cotton
(flannel), is not a fabric commonly used in jackets. Moreover, the
cut, fit and sizing of the styles do not indicate use as a jacket
(i.e., designed to be worn over other outer garments). These types
of garments are frequently worn as shirts either by themselves,
over underwear, or over other outerwear such as T-shirts and
turtlenecks. The fact that styles 5011 and 5022 may be worn over
other outerwear does not preclude their classification as shirts.
We further note that recent visits to area department stores
confirm our determination that styles 5011 and 5022 are principally
to be worn as shirts. Garments similar to those at issue were
displayed in the young men's or junior departments along with other
shirts, and not in the coat/jacket departments. As counsel did not
provide this office with evidence which establishes that styles
5011 and 5022 are designed, marketed and sold as jackets, we find
the fact that garments similar to those at issue are being sold to
the consumer as shirts persuasive.
Although the garments at issue possess some features commonly
associated with jackets, classification as such would lead to an
unreasonable result due to the fact that the garments' design,
fabric and usual mode of display in stores indicate that the
garments are to be principally worn as shirts. Based on the
foregoing, styles 5011 and 5022 are classifiable as shirts under
subheading 6211.42.0050, HTSUSA.
- DETRIMENTAL RELIANCE -
As the protest against the Notice of Redelivery for the eight
entries at issue is granted, protestant's petition for relief
pursuant to 19 CFR 177.9(d)(3) is rendered moot.
HOLDING:
The Notice of Redelivery was not timely in this case.
The protest against the redelivery notices is granted. A copy
of this decision should be attached to the Form 19 and provided to
the protestant as part of the notice of action on the protest.
In accordance with Section 3A(11)(b) of Customs Directive 099
3550-065, dated August 4, 1993, Subject: Revised Protest Directive,
this decision should be mailed by your office to the protestant no
later than 60 days from the date of this letter. Any reliquidation
of the entry in accordance with this decision must be accomplished
prior to the mailing of the decision.
Sixty days from the date of this decision, the Office of
Regulations and Rulings will take steps to make the decision
available to Customs personnel via the Customs Rulings Module in
ACS and to the public via the Diskette Subscription Service, Lexis,
Freedom of Information Act and other public access channels.
Styles 5011 and 5022 are classifiable as shirts under
subheading 6211.42.0050, HTSUSA.
Sincerely,
John Durant, Director
Commercial Rulings Division