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HQ 088102


February 2, 1991

CLA-2 CO:R:C:T 088102 HP

CATEGORY: CLASSIFICATION

TARIFF NO.: 6108.92.0030

Ms. Lorraine M. Dugan
Customs Analyst
Associated Merchandising Corporation
1440 Broadway
New York, NY 10018

RE: DD 853003 affirmed. NYRL 853721 revoked. Nightwear; sleepwear; lounger; robe; gown; dressing; nightdress; heavy

Dear Ms. Dugan:

This is in reply to your letter of September 12, 1990, to our New York office, concerning the tariff classification of a ladies' `lounger', produced in Singapore, under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA).

FACTS:

The merchandise at issue consists of a women's 65% polyester, 35% cotton knit full length pullover lounging robe which features a mock turtle neck, a jacquard knit front and back yoke, long sleeves with rib knit cuffs, and fleeced on the inside.

In DD 853003 (San Francisco) of June 6, 1990, this merchandise was called Style 4409A, and was being imported in sizes S, M & L. DD 853003 also stated "[a]n identical garment is Style 4409AN, which is made in large sizes 1x, 2x and 3x." It was classified under subheading 6108.92.0030, HTSUSA, textile category 650, as a women's dressing gown and similar articles.

In NY 853721 of July 9, 1990, this merchandise was called style 4409AXN. While no sizes were given, you state that this style is imported in sizes 1x, 2x and 3x. It was classified under subheading 6108.32.0010, HTSUSA, textile category 651, as a women's nightdress.

ISSUE:

Whether the instant merchandise is a nightdress or a dressing gown and similar articles under the HTSUSA?

LAW AND ANALYSIS:

After reviewing the San Francisco decision, our New York office is of the opinion that classification of the instant garment as a dressing gown and similar articles is more appropriate. We agree. The Customs Service periodically issues the Guidelines for the Reporting of Imported Products in Various Textile and Apparel Categories. The Guidelines, most recently published at 53 Fed. Reg. 52563 (Dec. 28, 1988), CIE 13/88 (Nov. 23, 1988), note that since certain types of garments are closely related in use, the Guidelines "are to be used as an aid in determining the commercial designation and, hence, the classification of an article." Used as such, they "represent the present position of the Customs Service."

The Guidelines, at 23, describe robes and dressing gowns (category 650) as:

Dressing gowns, including bath robes, beach robes, lounging robe and similar apparel. Physical characteristics which are expected in garments included in this category include:

1) Looseness.
2) Length, reaching to mid-thigh or below.
3) Usually a full or partial front opening, with or without a means of closure.
4) Sleeves are usually, but not necessarily present.

Included as lounging robes and similar apparel are those garments worn in the home for comfort which are inappropriate for wear on social occasions in and outside the home.

It is our opinion that the above definition is descriptive of the instant merchandise. The garment's fleece and heavy knit construction makes it too warm for use as sleepwear in all but the most frigid of environments.

HOLDING:

As a result of the foregoing, the instant merchandise is classified under subheading 6108.92.0030, HTSUSA, textile category 650, as women's or girls' slips, petticoats, briefs, panties, nightdresses, pajamas, negligees, bathrobes, dressing
gowns and similar articles, knitted or crocheted, other, of man- made fibers, other, women's. The applicable rate of duty is 17 percent ad valorem.

DD 853003 of June 6, 1990, is affirmed. NYRL 853721 of July 9, 1990, is revoked.

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, to obtain the most current information available, we suggest that you 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 your 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, you should contact your local Customs office prior to importing the merchandise to determine the current status of any import restraints or requirements.

This notice to you should be considered a revocation of NYRL 853721 of July 9, 1990, as to the merchandise described as women's nightwear/dressing gown, under 19 C.F.R. 177.9(d)(1) (1989). It is not to be applied retroactively to NYRL 853721 (19 C.F.R. 177.9(d)(2) (1989)) and will not, therefore, affect the transaction for the importation of your merchandise under that ruling. However, for the purposes of future transactions in merchandise of this type, NYRL 853721 will not be valid precedent. We recognize that pending transactions may be adversely affected by this modification, in that current contracts for importations arriving at a port subsequent to the release of HRL 088102 will be classified under the new ruling. If such a situation arises, you may, at your discretion, notify this office and apply for relief from the binding effects of the new ruling as may be dictated by the circumstances.

Sincerely,

John Durant, Director

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