CLA-2 RR:TC:TE 962385 jb
Ms. Dana Mobley
JC Penney Purchasing Corporation
6501 Legacy Drive
Plano, Texas 75024-3698
RE: Request for Reconsideration of PD D83113; classification of a women’s bathrobe
Dear Ms. Mobley:
This is in response to your letter, dated November 23, 1998, requesting reconsideration of Port Decision Letter (PD) D83113, dated October 21, 1998, which classified what you refer to as a sleeveless cover-up, referenced style 4207, in heading 6110, Harmonized Tariff Schedule of the United States (HTSUS), as a cardigan. A sample of the subject merchandise, in addition to documentation substantiating marketing and advertising were submitted to this office for examination.
Pursuant to section 625(c), Tariff Act of 1930, as amended (19 U.S.C. 1625(c), notice of the proposed revocation of PD D83113 was published on June 23, 1999, in the Customs Bulletin, Volume 33, Number 25.
FACTS:
The subject merchandise, referenced style 4207, is composed of 80 percent cotton and 20 percent polyester terry knit fabric and is described as a sleeveless garment that extends from the shoulders to above the knee. The garment has a U-shaped neckline in front and back, a full front opening with four button closure, two large patch pockets at the hip area, and a hemmed bottom.
In PD D83113 the merchandise was classified in subheading 6110.20.2075, HTSUSA, which provides for, sweaters, pullovers, sweatshirts, waistcoats (vests) and similar articles, knitted or crocheted, of cotton, other, women’s or girls’. You disagree with this classification determination. In your opinion the proper classification for this merchandise is in heading 6108, HTSUS, as a women’s bathrobe, or beach robe.
ISSUE:
What is the proper classification for the subject merchandise?
LAW AND ANALYSIS:
Classification of merchandise under the HTSUSA is governed by the General Rules of Interpretation (GRI's). GRI 1 requires that classification be determined according to the terms of the headings and any relative section or chapter notes. Where goods cannot be classified solely on the basis of GRI 1, the remaining GRI's will be applied, in the order of their appearance.
Heading 6108, HTSUS, provides for, among other things, women’s or girls’ knitted or crocheted bathrobes. Bathrobe is defined in Webster’s Ninth New Collegiate Dictionary, 1991, at 135 as, “a loose usu. absorbent robe worn before and after bathing or as a dressing gown.”
The Explanatory Notes to the Harmonized Commodity Description and Coding System (EN) to that heading state that “This heading covers two separate categories of knitted or crocheted clothing for women or girls, namely slips, petticoats, briefs, panties and similar articles (underclothing) and nightdresses, pyjamas, negliges, bathrobes (including beachrobes), dressing gowns and similar articles.”
Upon review of the subject garment this office finds that the submitted merchandise meets the definition of a “robe” referenced above. The loose and casual fitting style of this garment combined with the terry absorbent fabric construction, support your claim that the subject garment will be used as a bathrobe or beach robe cover-up, both being within the parameters of heading 6108, HTSUS.
Finally, in past rulings Customs has stated that the crucial factor in the classification of a garment is the garment itself. As stated by the court in Mast Industries, Inc. v. United States, 9 CIT 549, 552 (1985), aff’d 786 F.2d 1144 (CAFC, April 1, 1986), “the merchandise itself may be strong evidence of use”. When presented with a garment which is ambiguous in appearance, Customs will look to other factors such as environment of sale, advertising and marketing, recognition in the trade of virtually identical merchandise, and documentation incidental to the purchase and sale of the merchandise. It should be noted that Customs considers these factors in totality and no single factor is determinative of classification as each of these factors viewed alone may be flawed.
The documentation you have submitted, that is, photographs showing that the garments will be sold in the loungewear department of JCPenney stores with other bathrobes, and the JCPenny catalogue showing the “Delicate Spa” collection, a trade name used exclusively for robes, further substantiates your claim that the subject merchandise is being sold as a robe.
Accordingly, the determination in PD D83113 is revoked. The proper classification for this merchandise is in heading 6108. 91.0030, HTSUSA.
HOLDING:
The subject merchandise is properly classified in subheading 6108.91.0030, HTSUSA, which provides for, women’s or girls’ slips, petticoats, briefs, panties, nightdresses, pajamas, negligees, bathrobes, dressing gowns and similar articles, knitted or crocheted: other: of cotton: other: women’s. The applicable rate of duty is 8.8 percent ad valorem and the textile quota category is 350.
The designated textile and apparel category may be subdivided into parts. If so, visa and quota requirements applicable to the subject merchandise may be affected. Since part categories are the result of international bilateral agreements which are subject to frequent negotiations and changes, we suggest that your client check, close to the time of shipment, the Status Report on Current Import Quotas (Restraint Levels), an issuance of the U.S. Customs Service which is updated weekly and is available at the local Customs office.
Due to the changeable nature of the statistical annotation (the ninth and tenth digits of the classification) and the restraint (quota/visa) categories, your client should contact the local Customs office prior to importing the merchandise to determine the current status of any import restraints or requirements.
PD D83113 dated October 21, 1998, is hereby revoked. In accordance with 19 U.S.C. 1625(c), this ruling will become affective 60 days after its publication in the Customs Bulletin.
Sincerely,
John Durant, Director
Commercial Rulings Division