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HQ 088266


March 22, 1991

CLA-2 CO:R:C:T 088266 CMR

CATEGORY: CLASSIFICATION

TARIFF NO.: 6108.91.0030

Kathleen Murphy, Esq.
Katten Muchin & Zavis
525 West Monroe Street
Suite 1600
Chicago, Illinois 60606-3693

RE: Revocation of DD 850730 of April 20, 1990; Classification of a women's knit cover-up

Dear Ms. Murphy:

This ruling is in response to your submission of November 26, 1990, on behalf of your client, Sears Roebuck & Company, requesting reconsideration of DD 850730. In that ruling, Customs classified a women's knit cover-up, style 36371, as a pullover garment in heading 6110, HTSUSA.

FACTS:

The garment at issue, style 36371, is a woman's terry cloth pullover cover-up that extends from the shoulder to the area below the hips and above the knees. The garment is made of 80 percent cotton/20 percent polyester knit terry cloth fabric. The garment features a ribbed knit V-front neckline, short sleeves, two large front pockets below the waist and a hemmed bottom that curves up the side seams with a slight slit.

The garment is of simple construction and has a very casual, loose-fitting appearance. The garment will be produced in Taiwan.

ISSUE:

Was the subject garment correctly classified in DD 850730 as a garment of heading 6110, HTSUSA, or is it classifiable in heading 6108, HTSUSA, which provides for, among other things, women's bathrobes, dressing gowns, and similar articles, knitted or crocheted?

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]."

Heading 6110, HTSUSA, provides for sweaters, pullovers, sweatshirts, waistcoats (vests) and similar articles, knitted or crocheted. The other heading at issue here, heading 6108, HTSUSA, provides for, among other things, women's bathrobes, dressing gowns, and similar articles, knitted or crocheted.

The Explanatory Notes, which are the official interpretation of the HTS at the international level, provide the following relevant guidance as to the coverage of heading 6108:

This heading covers two separate categories of knitted or crocheted clothing for women or girls, namely . . . and nightdresses, pyjamas (sic), negliges, bathrobes (including beachrobes), dressing gowns and similar articles.

The Guidelines for the Reporting of Imported Products in Various Textile and Apparel Categories, CIE 13/88, state the following regarding the characteristics of dressing gowns, including bath robes, beach robes, lounging robes and similar apparel:

Physical characteristics which are expected in garments included in this category include:

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

The garment at issue is designed to be loose-fitting, has short sleeves, and extends from the shoulder to the mid-thigh or below. The only part of the above characteristics missing from this garment is the full or partial opening. However, that characteristic is prefaced with the term "usually" meaning it is not absolutely required.

The court in Mast Industries v. United States, 9 CIT 549, 552 (1985), aff'd, 786 F. 2d 1144 (1986), at 552, noted that "the merchandise itself may be strong evidence of use." United States v. Bruce Duncan Co., 50 CCPA 43, 46, C.A.D. 817 (1963). The garment at issue, in our opinion, is recognizable as a beach -3-
cover-up. The fabric of the garment is predominantly of absorbent cotton and the fabric construction, terry cloth, is typically used in making items such as bath robes and dressing gowns. The simple design and the fabric of the garment are typical of beach cover-up garments. Additionally, evidence has been submitted that indicates the garment will be advertised exclusively as a beach cover-up. In Mast Industries, supra, the court noted that most consumers use a garment in the manner in which it is marketed. Therefore, it is unlikely this garment will be principally used as something other than a beach cover- up.

Customs has issued other rulings which support the classification position taken herein. See, HRL 081237 of March 8, 1988; HRL 080512 of March 15, 1988; and HRL 082239 of March 28, 1989.

As to the classification of this garment in DD 850730 as similar to a sweater, we must disagree. This garment lacks the general appearance of a sweater and is not commercially recognized as a sweater. Simply because the garment covers the upper body and is worn as an outer-garment (in this case, over swimwear) does not make it classifiable as a sweater. Nor does it make it classifiable as a pullover of heading 6110, HTSUSA, as it lacks the general characteristics of the garments of that heading. The length of this garment alone would preclude classification in heading 6110, HTSUSA.

HOLDING:

The garment at issue, style 36371, is a beach cover-up classifiable in subheading 6108.91.0030, HTSUSA, textile category 350, dutiable at 9 percent ad valorem.

In order to insure uniformity in Customs classification of this merchandise and eliminate uncertainty, we are revoking DD 850730 of April 20, 1990, effective with the date of this letter.

This notice to you should be considered a revocation of DD 850730 under 19 CFR 177.9(d)(1). It is not to be applied retroactively to DD 850730 (19 CFR 177.9(d)(2)) and will not, therefore, affect past transactions for the importation of your merchandise under that ruling. However, for the purposes of future transactions in merchandise of this type, DD 850730 will not be valid precedent. We recognize that pending transactions may be adversely affected by this revocation in that current contracts for importation arriving at a port subsequent to this decision will be classified pursuant to it. If such a situation arises, you may, at your discretion, notify this office and may apply for relief from the binding effects of this decision as may be warranted by the circumstances. However, please be advised -4-
that in some instances involving import restraints, such relief may require separate approvals from other government agencies.

The designated textile and apparel category may be subdivided into parts. If so, the 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 renegotiations and changes, to obtain the most current information available, we suggest you check, close to the time of shipment, the Status Report On Current Import Quotas (Restraint Levels), an internal issuance of the U.S. Customs Service which is updated weekly and is available for inspection 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 importation of this merchandise to determine the current status of any import restraints or requirements.

Sincerely,

John Durant, Director

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