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?

-3-

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.

-4-

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.

-5-

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.

-6-

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.

-7-

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