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HQ 088904


February 19, 1992

CLA-2 CO:R:C:T 088904 CMR

CATEGORY: CLASSIFICATION

TARIFF NO.: 6108.91.0030, 6104.62.2030, 6109.10.0060, 6110.20.2075

Area District Director
U.S. Customs Service
P.O. Box
Charleston, South Carolina 29413-0876

RE: Internal Advice Request 40/90; Classification of certain women's garments--oversized shirts and top and shorts sets-- claimed to be sleepwear; Validity of Redelivery Notice

Dear Sir:

This ruling is in response to a request for internal advice initiated by Mudge, Rose, Guthrie. Alexander and Ferndon on behalf of the client, Parallele Internationale.

FACTS:

Four samples of the merchandise at issue were forwarded to this office for review. The samples include two oversized pullover shirts and two shorts sets. All of the samples are made of 100 percent cotton fine knit fabric.

Style 6189 is a woman's finely knit pullover T-shirt that is oversized in width and length. The garment is marked as a medium size. The arm sleeve seams extend past the shoulders and the garment extends in length to the mid-thigh area. The garment features a round, crew neck; short, hemmed sleeves and a hemmed bottom. A decorative print design appears on the front. The design depicts a partridge in full plumage on a pathway.

The second oversized T-shirt pullover lacks a style number though it is indicated by the Parallele's counsel that this garment was entered in 1988 as style 6191. It is also a size medium and similarly oversized in its width and length as style 6189. The fabric of the garment extends outward slightly at the shoulders creating short cap-like sleeves. The garment also features a round, capped neckline; capping on the sleeves; a hemmed bottom and eight-inch slits on the sides of the garment. -2-

The front of the garment features a decorative print design of an elephant sitting in a chair under a beach umbrella with the word "Florida" underneath the design. Packaging accompanied this sample. The packaging, in German, indicates the garment is a "stylish women's sleeping T-shirt" (in translation).

Style 6196 is a women's finely knit two-piece set consisting of a tank top and shorts. The tank top features capping at the neck and armholes, a hemmed bottom, and a print design with a 50's motif. The garment extends from the shoulders to the hips. The shorts have an elasticized waistband and small side slits with the back slit appearing slightly longer than the front.

Style 6197 is a women's finely knit two-piece set consisting of a pullover top and shorts. The top features very short capped sleeves, a U-shaped, capped neckline, a rib knit waistband, and a decorative print on the front of the garment which depicts joggers along with the word "Runner". The garment extends from the shoulders to slightly below the waist. The shorts have an elasticized waistband and small side slits.

On May 23, 1989, redelivery notices were issued for four entries of Parallele's merchandise, styles 6191, 6192, 6189, 6196, 6197, 6198. The entries were made on the following dates: 12/15/88, 3/3/89, 3/27/89, and 4/7/89. The merchandise was released on the following dates (respectively): 12/20/88, 3/13/89, 4/5/89 and 4/14/89.

The 3/3/89 entry was subject to an importer's premises examination on March 31, 1989 and a request for further information (CF 28) on April 7, 1989.

The goods at issue were manufactured in Brazil and, according to the importer's counsel, originally intended for the German market. Additionally, it is indicated in the submission the goods were intended for the young teen girls' market.

The importer's counsel contends in his brief that these goods are sleepwear. The goods were purchased from Cie. Hering, a Brazilian manufacturer of intimate apparel. An affidavit of a wearing apparel designer for Parallele indicates the goods were purchased "off the shelf" and were not designed for the American market, but for the Brazilian and European markets. The garments were re-sized, however, for the U.S. market.

ISSUE:

Are the subject garments classifiable as sleepwear as entered or as outerwear?

Are the Notices of Redelivery issued more than 30 days after the date of entry valid?

LAW AND ANALYSIS:

Classification of goods under the HTSUSA is governed by the General Rules of Interpretation (GRIs). GRI 1 provides that "classification shall be determined according to the terms of the headings and any relative section or chapter notes, provided such headings or notes do not otherwise require, according to [the remaining GRIs taken in order]."

Additional U.S. Note 1(a), to the General Rules of Interpretation, provides that

[i]n the absence of special language or context which otherwise requires--

(a) a tariff classification controlled by use (other than actual use) is to be determined in accordance with the use in the United States at, or immediately prior to, the date of importation, of goods of that class or kind to which the imported goods belong, and the controlling use is the principal use. (emphasis added)

Therefore, while it may be of some interest that the garments may be considered sleepwear in the Brazilian or German markets, for U.S. Customs classification purposes, it is how the garments are used in the U.S. market that is paramount.

The oversized pullover T-shirts are similar to the garments which were at issue in St. Eve International, Inc. v. United States, 11 CIT 224 (1987). In that case, the court cited evidence that the garments were designed, manufactured and advertised as sleepwear, were mainly sold as sleepwear, and that the garments themselves appeared to be suitable as sleepwear, i.e., the sheerness of the fabrics and positioning of the designs on the garments. The court held that on the basis of the evidence, the importer had established the chief use (the use which exceeds all other uses) of the garments in question was as sleepwear.

In Mast Industries v. United States, 9 CIT 549, 552 (1985), aff'd, 786 F. 2d 1144 (1986), the court noted the definition of "nightwear" as "garments to be worn to bed" and "nightshirt" as "a nightgown resembling a shirt." The court in that case held that the particular garment at issue was classifiable as nightwear since it was designed, manufactured, marketed and used as nightwear.

As a result of the above cited court cases, when Customs is presented with situations in which imported garments are claimed to be sleepwear are capable of multiple uses, we look at the evidence presented by the importer to support a sleepwear classification. In this situation, limited evidence has been presented. In support of a sleepwear classification, it is submitted that the manufacturer is recognized as an intimate apparel manufacturer. Additionally, the packaging submitted with style 6191, while in German, indicates it is a "sleep T-shirt." A flyer advertising style 6189 as a sleepshirt has been submitted along with a promotional booklet for Hering in which similarly designed garments are advertised as sleepwear, although the colors and print design themes are quite different from those of the garments at issue. An affidavit from a merchandiser and salesman for Parallele was submitted which indicates the garments were advertised, sold and invoiced by Hering as sleepwear. The merchandiser further indicates that the garments were offered as sleepwear by Parallele, though some buyers viewed the nightshirts as multi-purpose garments and such views were not discouraged as Parallele simply wanted to make sales.

An analysis of the descriptions on invoices, order forms and purchase order forms was submitted. Reviewing this compilation of descriptions, it is evident that these garments were described on these forms as sleepwear, cover-ups, pj short sets, and short sets. It appears that the oversized T-shirts were described as cover-ups more often than as sleepshirts and that the shorts sets were most often described as just that, and not pajamas.

In regard to the oversized T-shirts, the evidence submitted supports a determination that these are multi-purpose garments in the U.S. market. Determining their principle use is a more difficult task. While it is apparent from the information at hand that these goods may well be considered sleepshirts in the German market, it is also apparent that they were largely purchased to be sold at retail as outerwear garments, i.e., cover-ups, in the American market. In fact, following the principle of the "garment speaks for itself", the print design on style 6191 clearly denotes beach wear.

As to the shorts sets, Customs finds the submitted evidence unpersuasive. The promotional booklet for Hering shows similar garments, but with very different themes, i.e., themes associated with sleep. It is difficult to distinguish these shorts sets as sleepwear sets as opposed to outerwear sets. No other advertising material for the short sets has been submitted. Without more evidence, in light of the mixed descriptions, and based on an examination of the garments, Customs cannot agree with the claimed designation of sleepwear.

Objection has been made to the Notices of Redelivery. The objection is based on a claim that because the Notices of Redelivery were issued more than 30 days after the date of entry they should be declared invalid and cancelled.

The Notices of Redelivery issued for Parallele's entries of 12/15/88, 3/3/89, 3/27/89, and 4/7/89, were issued under Customs authority as set out in 19 CFR 141.113 (1990) which addresses the recall of merchandise released from Customs custody. 19 CFR 141.113(b) states:

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, he shall promptly demand the return to Customs custody of any such merchandise which has been released. [paragraph (a) is limited to merchandise not legally marked]

Paragraph (f) of 141.113 establishes the time limitation for issuance of a demand for redelivery as follows:

A demand for the return of merchandise to Customs custody shall not be made after the liquidation of the entry covering such merchandise has become final.

Counsel for the importer has argued that 19 CFR 141.113 must be read in conjunction with 19 CFR 113.62, thereby limiting the time period to demand redelivery to no more than 30 days after release of the merchandise or 30 days after the end of the conditional release period (whichever is later). This office agrees that the language of the two regulations must be read in conjunction with one another.

The file indicates that an examination at the importer's premises took place on March 31, 1989. This is within 30 days of the release date of the 3/3/89 entry (released 3/13/89). A request for further information was made on 4/7/89. The request for information, CF 28, requested information for the 12/15/88, 3/3/89 and 3/27/89 entries. This request was made within 30 days from release of the merchandise for the 3/3/89 and 4/5/89 entries. Customs views the examination of the importer's premises and the request for information, CF 28, as establishing a separate conditional release period apart from the initial period of 30 days from entry. For the 12/15/88 entry, however, the CF-28 was issued more than 30 days after release of the merchandise and therefore could not extend the release period.

The CF 28 must be returned to Customs with the requested information. While it is not clear from the form on which date Customs received it, the form must be dated and signed by the agent, owner or importer. The signature is present and the date is clear. The date indicates that the form was signed on 5/17/89. Therefore, Customs could not have received the requested information prior to May 17, 1989. Customs had 30 days from receipt of the information to issue the notices of redelivery for the entries involved. The information requested for the 3/3/89 and 3/27/89 entries involved the same merchandise which was entered in the 4/7/89 entry. As Customs had already requested further information on this merchandise, the importer was under constructive notice that the release of the merchandise was conditional upon receipt of the information requested in the CF 28. The notices of redelivery for the 3/3/89, 3/27/89 and 4/7/89 entries were issued less than 30 days from receipt of the requested information. Therefore, these notices of redelivery are valid. This office agrees, however, that the notice of redelivery for the 12/15/88 entry should be cancelled.

HOLDING:

The packaging for the shorts sets and style 6191 of the oversized T-shirts indicate that the garments are women's garments and therefore they will be classified as such.

The oversized T-shirts, styles 6191 and 6189, are classifiable as beach cover-ups in subheading 6108.91.0030, HTSUSA, which provides for, among other things, women's nightdresses, pajamas, negligees, bathrobes, dressing gowns and similar articles, knitted or crocheted, other, of cotton, other. The garments fall within textile category 350 and are dutiable at 9 percent ad valorem.

The shorts sets, styles 6196 and 6197, are separately classifiable as tops and shorts. The shorts for both styles are classifiable as women's cotton shorts in subheading 6104.62.2030, HTSUSA, textile category 348, dutiable at 16.7 percent ad valorem.

The top for style 6196 is classifiable as a women's cotton tank top in subheading 6109.10.0060, HTSUSA, textile category 339, dutiable at 21 percent ad valorem. The top for style 6197 is classifiable as a cotton pullover in subheading 6110.20.2075, HTSUSA, textile category 339, dutiable at 20.7 percent ad valorem.

The Notices of Redelivery for the entries of 3/3/89, 3/27/89 and 4/7/89 are valid. The Notice of Redelivery for the 12/15/88 entry should be cancelled.

Sincerely,

John Durant, Director
Commercial Rulings Division

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