CLA-2 CO:R:C:G 082624 SM 829859
Stephen M. Zelman, Esq.
Siegel, Mandell & Davidson, P.C.
One Whitehall Street
New York, NY 10004
RE: Request for reconsideration of New York Ruling Letter
829859 of June 28, 1988
Dear Mr. Zelman:
Your letter of July 27, 1988, on behalf of Michele of
Miami, Inc., requests reconsideration of NYRL 829859, in which
four styles of women's woven cotton garments were determined
to be classifiable as dresses under heading 6204, Harmonized
Tariff Schedule of the United States Annotated (HTSUSA). In
the original ruling request three of the styles were claimed
to be nightdresses and one, Style 1700, was claimed to be a
dressing gown. No support was provided for the claimed clas-
sifications. You claim that two of the styles, 1704 and 1709,
are classifiable as women's nightdresses and two, styles 1700
and 1703, as women's dressing gowns, both under heading 6208,
HTSUSA.
FACTS:
Samples of the four styles were submitted. They are
described in detail in the New York letter. You state that
the decisions in Mast Industries v. United States, 9 CIT 549
(1985), aff'd, 786 F. 2d 1144 (Fed Cir. 1986), and St. Eve
International v. United States, Slip Op. 87-37 (Ct. Int'l
Trade, decided March 31, 1987), require classification of
Styles 1704 and 1709 as nightdresses, and that Styles 1700 and
1703 are clearly dressing gowns. You state that Michele of
Miami is an established resource for nightwear and loungewear
products, and that it sells only to sleepwear and loungewear
departments of stores. You also state that it sells only to
nightwear/robe buyers.
You believe that various features of Styles 1704 and
1709 characterize them as nightwear: ankle length, light-
weight fabric, tucking, gathering, embroidery, scalloping,
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loose fit, small-medium-large-sizing, and lack of side
pockets. You enclose copies of the importer's sales litera-
ture showing these two styles as sleepwear and copies of
purchase orders describing them as nightgowns.
You state that the original binding ruling request indi-
cated that Style 1703 was a nightdress, but that it is in fact
a robe even though it lacks a front opening, which is not a
strict requirement for robes under the Textile Category
Guidelines. Further, it comes in only one size and lacks
pockets. You state that both this style and Style 1700 are
long, loose, and sleeved, features characteristic of robes.
You state that the NIS apparently believed that these are
"granny dresses," but that since such articles are obsolete in
the fashion industry, the two styles are clearly robes. You
enclose a copy of a catalog page that purports to show Style
1700 merchandised as coordinating with a nightshirt style.
ISSUE:
Were the samples properly classified as dresses, or
should they be classified as nightdresses and dressing gowns?
LAW AND ANALYSIS:
Classification under the HTSUSA is in accordance with
the General Rules of Interpretation (GRI's). GRI 1 provides
that classification is determined first in accordance with the
terms of the headings of the tariff and any relative section
and chapter notes.
Heading 6208, HTSUSA, provides, both by its terms and as
set out in the Explanatory Notes, the official interpretation
of the HTSUSA at the international level, for two groups of
articles. One is certain women's underclothing. The other
includes, by name, nightdresses, pajamas, negligees, bath-
robes, dressing gowns, and similar articles for women and
girls. The Explanatory Notes state that garments of the
latter group are usually worn indoors.
To assist in the classification of both nightdresses and
robes, Customs looks to the Textile Category Guidelines,
C.I.E. 13/88. With regard to nightdresses, these Guidelines,
revised in accordance with the HTSUSA, reflect the many past
Customs Service decisions to classify as pajamas and other
nightwear those garments worn to bed for sleeping. T.D. 87-
118, which limited the St. Eve decision to the merchandise
before the court, reiterated Customs' position that nightwear
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is sleepwear, and that garments advertised and sold as
dresses, shirts, trousers, beachrobes, or other nonsleep
articles are not classifiable as nightwear. This position is
consistent with the judgment in Mast Industries, that night-
clothes are garments to be worn to bed, and that the garment
in question, found to be designed, manufactured, marketed, and
used as nightwear, was so classifiable. We find no
inconsistency in considering these same factors in classi-
fying pajamas, nightdresses, and similar garments under the
HTSUSA.
Many garments are clearly nightwear; they generally do
not come before Customs for rulings because there is no doubt
as to their tariff classification. Difficulties arise when
garments claimed to be nightwear resemble dresses, shirts,
trousers, or other garments intended to be worn not in the
privacy of the bedroom but for public view. The more closely
an importer's merchandise resembles these outerwear garments
in color, style, and fabric, the more difficulty he will have,
obviously, in establishing for Customs officials that that
merchandise is sleepwear.
The difficulty, moreover, is not merely that the styles
themselves are ambiguous; the environment of sale is equally
so. Examination of the trade press indicates that sleepwear/
intimate apparel departments of stores have sought to increase
sales by offering a variety of clothes in addition to sleep-
wear and underwear. Visits to the stores themselves reveal
that this is indeed the case. Thus, an importer's claim that
his merchandise is sold in a sleepwear department cannot be
conclusive of its classification. In many cases, garments
sold in these departments are indistinguishable from those
sold elsewhere.
In determining whether a particular garment is to be
worn to bed for sleeping, Customs will consider the sample it-
self and whatever information the importer can supply about
how the garment is to be marketed and sold. We must also con-
sider how the same or virtually the same article is advertised
and sold by others. In some cases we receive samples of the
same merchandise from different importers requesting different
classifications. With regard to documentation in support of a
claimed classification, letters of credit, purchase orders,
contracts, confirmations, and other documentation incidental
to the purchase of the merchandise cannot be regarded as con-
clusive. These documents can be self-serving and do not
necessarily reflect how merchandise is advertised in the U.S.
market.
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When goods are not clearly sleepwear, evidence of
marketing in the United States as sleepwear is a factor in
classification. Our conclusion, based on the information
submitted, is that Styles 1704 and 1709 are properly classi-
fied as nightdresses. Similar styles have been so classi-
fied, e.g., in file 081469 of April 25, 1988.
With regard to robes and dressing gowns, the Textile
Category Guidelines indicate that garments are included that
are worn in the home for comfort and that are inappropriate
for wear on social occasions inside and outside the home.
Garments worn as street attire are excluded.
We do not agree that Styles 1700 and 1703 are classifi-
able as dressing gowns or robes as claimed. While Michele of
Miami as a sleepwear/loungewear resource, the term "lounge-
wear" is not coextensive with "robes and dressing gowns" as
you suggest. "Loungewear" now includes a variety of loose,
comfortable casual clothes that can be worn in a variety of
settings. Thus the fact that a garment is sold by a lounge-
wear company or in a loungewear department is not conclusive
as to its classification as a dressing gown.
The fact that a garment lacks pockets does not make it
unsuitable as a dress; further, Style 1703 in fact has
pockets. Neither ankle length nor loose fit nor singular
sizing is characteristic only of dressing gowns, most of which
do have some type of front opening. The submitted catalog
page showing this style and Style 1700 does not characterize
them as dressing gowns, or in fact as anything. They have the
appearance of casual dresses, and no particular evidence sub-
mitted establishes that they are indeed dressing gowns and
were incorrectly classified.
HOLDING:
Styles 1704 and 1709 are classified under subheading
6208.21.0020, HTSUSA, textile category 351, a provision for
women's other cotton nightdresses.
Styles 1700 and 1703 were properly classified in NYRL
829859 as dresses under subheadings 6204.42.3050 and 6204.
42.3030, HTSUSA, textile category 336, respectively.
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NYRL 829859 is modified accordingly.
Because of the changeable nature of the statistical
annotation, i.e., the ninth and tenth digits of the tariff
number, and the textile restraint categories, you should
contact your local Customs office before importation of this
merchandise to determine the current status of any import
restraints or requirements.
Sincerely,
John Durant, Director
Commercial Rulings Division
6cc: Area Director of Customs
New York Seaport Area
cc: Legal Reference Section
cc: CITA
cc: Phil Robins
cc: NIS Eileen Crowley