HQ 0954824 - 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. - United States International Trade Commision Rulings

United States International Trade Commision Rulings And Harmonized Tariff Schedule

faqs.org Rulings By Number Rulings By Category Tariff Numbers

faqs.org > Rulings and Tariffs Home > Rulings By Number > 1994 HQ Rulings > HQ 0954754 - HQ 0954853 > HQ 0954824

HQ 954824

May 19, 1994

CLA-2 CO:R:C:T 954824 SK

CATEGORY: CLASSIFICATION

TARIFF NO.: 6211.42.0054

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.

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

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

Previous Ruling Next Ruling

See also: