Application for further review of protest number 3901-04-100725 and 3901-04-100805; Classification of a man’s upper body garment; Timeliness of Demand for Redelivery

HQ H013757 July 29, 2010 CLA-2:OT:RR:CTF:TCM H013757 JRB CATEGORY: Classification Tariff No.: 6205.20.2050 Port Director Port of Chicago 9915 Bryn Mawr Rosemont, Illinois 60018 RE: Application for further review of protest number 3901-04-100725 and 3901-04-100805; Classification of a man’s upper body garment; Timeliness of Demand for Redelivery Dear Port Director: This letter is our decision on protest and Application for Further Review (AFR) numbers 3901-04-100725 and 3901-04-100805, filed by counsel on behalf of Allegro Intimates, Inc. (protestant). The protest is against U.S. Customs and Border Protection’s (CBP) classification of a man’s upper body garment from Turkey, under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) and its subsequent demand for redelivery. FACTS: The subject merchandise is an upper body garment for men. The sample that you retained is a size 2XL with a collar. It has a full frontal opening with metal snap button closures. On one side the garment features a black and white flannel fabric and on the other side a black denim like material. The weight of the denim material is asserted to be 8.5 ounces per square yard. The weight of the flannel fabric is asserted to be 5.6 ounces per square yard. Both sides are made from 100% cotton. The denim side has one pocket on the chest while the flannel side has two chest pockets with snap button closures. Both sides of the garment have a yoke. In addition, the garment has side vents. Finally, there is no back middle seam on either side of the garment. Pictures of the subject merchandise are below.






The garments that are the subject of protest 3901-04-100725 entered the United States in nineteen separate entries from January 6, 2003 through February 9, 2004. The protestant entered these garments under subheading 6201.92.2031, HTSUSA, which provides for men’s denim anoraks and is subject to visa/quota category 334. Notices to Redeliver (CBP Form 4647) and Notices of Action (CBP Form 29) were simultaneously issued on April 6, 8, and 13, 2004 indicating that the classification of the merchandise should be changed to subheading 6205.20.2050, HTSUSA, which provides for cotton men’s shirts with two or more colors in the warp and/or the filling under quota/visa category 340. The protestant then filed protest and AFR 3901-04-100725 on May 3, 2004 alleging that the Demand for Redelivery was untimely and based on an incorrect classification. The garments that are the subject of protest 3901-04-100805 entered the United States in one entry on March 25, 2004. A Notice of Samples Retained (CBP Form 6423) was issued on March 22, 2004 for garments that were the subject of this entry. A Notice to Redeliver (CBP Form 4647) and a Notice of Action (CBP Form 29) were simultaneously issued on March 31, 2004. The protestant then filed protest and AFR 3901-04-100805 on May 19, 2004 making the same arguments as the aforementioned protest. The underlying entries for both protests were liquidated between May 21, 2004 and February 1, 2008. There is one entry dated August 28, 2003, that has not been liquidated, which is the subject of protest 3901-04-100725. ISSUE: Whether the Demand for Redelivery was appropriate? LAW AND ANALYSIS: We note that the demand for redelivery to CBP’s custody is subject to protest under 19 U.S.C. §1514(a)(4). The protests were timely filed, within ninety days of the Notices for Redelivery.  See 19 U.S.C. § 1514(c) (2004). In addition, Further Review of Protests Nos. 3901-04-100725 and 3901-04-100805 was properly accorded to Protestant pursuant to 19 C.F.R. §174.24 because the protestant alleges that the decision against which the protest was filed is inconsistent with previously issued rulings and protest review decisions. As an initial matter, there is one entry that has not been liquidated. The entry dated August 28, 2003, which is the subject of protest 3901-04-100725, has been extended since August, 2004. Liquidation of an entry can be suspended or extended pursuant to 19 U.S.C. §1504. First, the liquidation of an entry can only be suspended pursuant to a statute or a court order. See 19 U.S.C. §1504(a). In this case there is no statute or court order that requires us to suspend the liquidation of these entries. Second, 19 U.S.C. §1504(b) (1999) provides that: Any entry the liquidation of which is extended under this subsection shall be treated as having been liquidated at the rate of duty, value, quantity, and amount of duty asserted at the time of entry by the importer of record at the expiration of 4 years from the applicable date specified in subsection (a) of this section. Since this entry has been suspended for six years it has exceeded the statutory allotment of four years from the date upon which an entry should be deemed liquidated. Therefore, you are instructed to consider the entry dated August 28, 2003, deemed liquidated pursuant to 19 C.F.R. §159.11. Timeliness of Notice for Redelivery The initial issue is the timeliness of the Demand for Redelivery. CBP regulations, 19 C.F.R. §141.113(d), provide: If at any time after entry the port 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), (b), or (c) of this section, he shall promptly demand the return to CBP custody of any such merchandise which has been released. In addition, 19 C.F.R. §113.62(d) provides, in relevant part: 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). CBP has determined that Demands for Redelivery are not timely when issued more than thirty days after the release of merchandise by CBP and no Request for Information (CBP Form 28) is issued or any other action taken to establish a conditional release period such as the retention of samples (CBP Form 6423). See Headquarters Ruling Letter (HQ) W968383, March 2, 2007 and HQ 114819, dated October 8, 1999. In particular, the port must take action to establish a conditional release within thirty days of the goods being released from CBP custody. See HQ 114511, dated October 30, 1998. The first notice establishing a conditional release with respect to the proper classification of these garments occurred on March 22, 2004. The entries for protest number 3901-04-100725 were dated from January 6, 2003 through February 9, 2004, which is more than thirty days before the notice establishing conditional release. Therefore, this protest must be allowed because the port released these goods from its custody and allowed thirty days to pass before issuing any sort of notice establishing a conditional release or making a Demand for Redelivery. However, protest number 3901-04-100805, involves an entry dated March 25, 2004, and is the same entry in which you issued the notice establishing a conditional release. The Demand for Re-Delivery on this entry was then issued six days later on March 31, 2004, thus making the Demand for Re-Delivery timely with regard to the entry that is the subject of protest number 3901-04-100805. Classification The protestant asserts that even if the Demand for Re-Delivery was timely it is unlawful because it is based on an improper classification of the merchandise in a subheading that is subject to quota restrictions. All merchandise imported into the United States is classified in accordance with the HTSUS. Merchandise is classifiable under the HTSUS in accordance with the General Rules of Interpretation (GRIs). The systematic detail of the HTSUS is such that most goods are classified by application of GRI 1, that is, 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 GRIs 2 through 6 may then be applied in order. The 2004 HTSUS provisions under consideration are: 6201 Men’s or boys’ 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 cotton: Other: 6201.92.20 Other… Blue denim: 6201.92.2031 Men’s (334)… 6205 Men’s or boys’ shirts: 6205.20 Of cotton: 6205.20.20 Other… Other: Other: With two or more colors in the warp and/or the filling: Other: 6205.20.2050 Men’s (340)… When classifying factually ambiguous hybrid garments, CBP references the Guidelines for the Reporting of Imported Products in Various Textile and Apparel Categories, CIE 13/88 (Nov. 23, 1988). See HQ 968420, dated October 31, 2006; HQ 967839, dated April 26, 2006; and HQ 967188, dated January 28, 2005. The Guidelines were “developed and revised in accordance with the HTSUSA to ensure uniformity, to facilitate statistical classification, and to assist in the determination of the appropriate textile categories established for the administration of the Arrangement Regarding International Trade in Textiles.” HQ 956982, dated November 22, 1994. The Guidelines are not binding, but do assist Customs and the trade community in distinguishing different classes of garments. Id. The Guidelines with regard to determining whether a garment is classifiable as coat/anorak/jacket, provide, in pertinent part, the following: Three-quarter length or longer garments commonly known as coats, and other garments such as…waist length jackets fall within this category….A coat is an outerwear garment which covers either the upper part of the body or both the upper and lower parts of the body….Garments in this category have a full or partial front opening, with or without a means of closure…. * * * * * * * * * * C) Shirt-jackets have full or partial front openings and sleeves, and at the least cover the upper body from the neck area to the waist. They may be within the coat category if designed to be worn over another garment (other than underwear). The following criteria may be used in determining whether a shirt-jacket is designed for use over another garment, the presence of which is sufficient for its wearer to be considered modestly and conventionally dressed for appearance in public, either indoors or outdoors or both: Fabric weight equal to or exceeding 10 ounces per square yard…. A full or partial lining. Pockets at or below the waist. Back vents or pleats. Also side vents in combination with back seams. Eisenhower styling. A belt or simulated belt or elasticized waist on hip length or longer shirt-jackets. Large jacket / coat style buttons, toggles or snaps, a heavy-duty zipper or other heavy-duty closure, or buttons fastened with reinforcing thread for heavy-duty use. Lapels. Long sleeves without cuffs. Elasticized or rib-knit cuffs. Drawstring, elastic or rib-knit waistband. Note: On knit garments, items 10 and 11 count as one feature. Garments having features of both jackets and shirts will be categorized as coats if they possess at least three of the above listed features and if the result is not unreasonable. Many such garments will function as the upper part of leisure suits and will be placed in the categories for “suit-type coats.”… Garments not possessing at least 3 of the listed features will be considered on an individual basis. (Emphasis added). Similar guidelines are also available in the Informed Compliance Publication entitled Classification: Apparel Terminology under the HTSUS. Applying these criteria to the present case, the product has only two features indicative of a jacket: (1) snap button closures; and (2) two different materials with a combined weight of more than 10 ounces per square yard. The Guidelines provide that garments with only one or two jacket characteristics should be considered on an individual basis. The garment has a shirt like collar and cuffs, a shirt like pocket on one side and on the other side two pockets at the chest, and side vents. These characteristics are all indicative of a shirt. The protestant contends that despite the fact that the garment does not have three or more of the characteristics identified above, the garment’s fabric is too heavy and too large to be considered a shirt. However, we have previously classified shirt-jackets with fleece linings as shirts in heading 6205, HTSUS, because the overall design and feel of the garment was that of a shirt. See HQ 958512, dated December 1, 1995. In HQ 958512 we found that while the garment contained a quilted lining that fact did not exclude it from being classified as a shirt. We find that the protestant’s argument that the material is too heavy to be considered a shirt to be unpersuasive. Finally, the garment is distinguishable from the garment in HQ 966831, dated December 22, 2004, because the garment that was the subject of that decision met three of the classification criteria and could be classified as a jacket. In particular, the garment in HQ 966831 had a liner, a heavy weight, and jacket style buttons. This garment only has two features described in the guidelines. Therefore, we believe that the garment is to be classified as a shirt in heading 6205, HTSUS; more specifically it is classified in subheading 6205.20.2050, HTSUSA, which provides for cotton men’s shirts with two or more colors in the warp and/or the filling under quota/visa category 340. Lastly, section 304 of the Tariff Act of 1930, as amended (19 U.S.C. §1304), provides that, unless excepted, every article of foreign origin imported into the United States shall be marked in a conspicuous place as legibly, indelibly, and permanently as the nature of the article (or container) will permit, in such a manner as to indicate to the ultimate purchaser in the United States the English name of the country of origin of the article. Congressional intent in enacting 19 U.S.C. §1304 was “that the ultimate purchaser should be able to know by an inspection of the marking on the imported goods the country of which the goods is the product. The evident purpose is to mark the goods so that at the time of purchase the ultimate purchaser may, by knowing where the goods were produced, be able to buy or refuse to buy them, if such marking should influence his will.” United States v. Friedlaender & Co., 27 C.C.P.A. 297, 302 (1940). Part 134 of CBP Regulations implements the country of origin marking requirements and exceptions of 19 U.S.C. §1304. Section 134.41(b) (19 C.F.R. §134.41(b)) mandates that the ultimate purchaser in the United States must be able to find the marking easily and read it without strain. Section 134.1(d), Customs Regulations (19 C.F.R. §134.1(d)), defines the ultimate purchaser as generally the last person in the U.S. who will receive the article in the form in which it was imported. The sample of the product that we have before us has no country of origin markings. In fact, the garment is also lacking labels which provide the fiber content. To ensure compliance with the Textile Fiber Products Identification Act (15 U.S.C. §70) which is applicable to textile products, we suggest that you forward the issue to the Federal Trade Commission (FTC) for a determination on this issue. CBP does not issue rulings or decisions interpreting FTC guidelines. The address of the FTC is: Federal Trade Commission 6th and Pennsylvania, NW, Washington, D.C. 20580 HOLDING: You are instructed to ALLOW Protest number 3901-04-100725 because the Demand for Re-Delivery was untimely. By application of GRIs 1 and 6, the subject merchandise is classified in subheading 6205.20.2050, HTSUSA, which provides for “[m]en’s or boys’ shirts: [o]f cotton: [o]ther: [o]ther: [o]ther: [w]ith two or more colors in the warp and/or the filling: [o]ther: [m]en’s (340)…” making the merchandise subject to quota category 340. In so far as the Demand for Re-Delivery was timely, you are instructed to DENY protest 3901-04-100805. Finally, you are instructed to have entry ***-****759-2, dated August 28, 2003, deemed liquidated pursuant to 19 U.S.C. §1504(b) following the procedures provided in 19 C.F.R. §159.11. More specifically, you are to liquidate the entry as entered by the protestant in subheading 6201.92.2031, HTSUSA. In accordance with Sections IV and VI of the CBP Protest/Petition Processing Handbook (HB 3500-08A, December 2007, pp. 24 and 26), you are to mail this decision, together with the CBP Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing the decision. Sixty days from the date of the decision, the Office International Trade, Regulations and Rulings, will make the decision available to CBP personnel, and to the public on the CBP Home Page on the World Wide Web at www.CBP.gov, by means of the Freedom of Information Act, and other methods of public distribution. Sincerely, Myles B. Harmon, Director Commercial and Trade Facilitation Division