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HQ 963771




March 31, 2000

CLA-2 RR:TC:TE 963771 CMR

CATEGORY: CLASSIFICATION

TARIFF NO.: 6204.42.3050

John B. Pellegrini, Esq.
Ross & Hardies
Park Avenue Tower
65 East 55th Street
New York, New York 10022-3219

RE: Reconsideration of New York Ruling Letter (NY) F81126; classification of women’s dusters; heading 6204 (dresses) v. heading 6208 (similar to bathrobes or dressing gowns)

Dear Mr. Pellegrini:

This is in response to your submission of February 22, 2000, on behalf of your client, Dollar General Corporation, requesting reconsideration of NY F81126 which was issued on January 14, 2000 and classified certain women’s cotton woven “dusters” as dresses of heading 6204, Harmonized Tariff Schedule of the United States (HTSUS). This office has reviewed your submission, along with your supplemental submission of March 28, 2000, and the four sample garments submitted for our review. We have also considered the arguments you made during your meeting with Customs personnel on March 22, 2000. For the reasons set forth below, we affirm the classification of these garments in NY F81126 as cotton dresses.

FACTS:

The four submitted samples, style numbers LH 50, LH 150, LH 200, and LH 250, (also identified, respectively by stock numbers 6-972-0142, 6-972-0177, 6-972-0185, and 6-972-0169) are all made of 55 percent cotton/45 percent polyester woven printed fabric. Each garment extends from the shoulder to below the knee, almost to the mid-calf. Each of the garments features a full front opening which is secured by six (styles LH 50, LH 150, and LH 200) or seven (LH 250) metal snaps, short sleeves, a hemmed bottom, and one (LH 150 and LH 200) or two (LH 50 and LH 250) large patch pockets about the hip level. The garments are loose-fitting and are available in medium, large, extra large, 2X and 3X sizes. They vary in styling by motif, construction and collar treatment as follows:

Style LH 50

The garment features a floral print, a front and back yoke, and a scoop neck with a front collar of a white patterned woven cotton fabric. The pointed collar extends from the shoulder seams forward and features embroidered strawberries and flowers. A bow made of the same fabric as the collar is sewn to the garment so as to be centered at the bottom of the bow when the top snap is closed. The two patch pockets at the hip area feature a top trim of the same white woven fabric also with embroidered strawberries and piping of the same fabric along the contours of the pockets. The garment’s short sleeves also feature this piping.

Style LH 250

The garment features a floral print, a front and back yoke, and a rounded neck with a peter pan collar. The two patch pockets are of the same floral print fabric as the garment and feature no trim.

Style LH 150

The garment features a floral print, a yoke of a white patterned woven cotton fabric with a bow made of the same fabric as the collar sewn to the garment so as to be centered at the front neckline when the top snap is closed. The short sleeves of the garment are trimmed with the same white woven fabric. The patch pocket at the hip area is shaped and embroidered to look like a tea pot.

Style LH 200

The garment features a stripe print with a rounded collar with contrasting piping along the neckline ending in ties for tying a bow. The short sleeves feature the same contrasting piping. The patch pocket is shaped, constructed and embroidered to look like a strawberry.

The garments are being imported from Bangladesh.

In support of classification of the subject garments as similar to bathrobes and dressing gowns you have provided copies of supplement pages from the purchase orders which indicate the department which purchased the garments; a copy of one purchase order; a copy of one invoice; and copies of advertisements of similar garments by competitors of your client. You have also provided a store layout indicating the department in which the garments will be displayed. In addition, you have cited to the Guidelines for the Reporting of Imported Products in Various Textile
and Apparel Categories, CIE 13/88 (November 23, 1988) (hereinafter Guidelines) for its description of dresses and robes and dressing gowns.

In your supplemental submission, you included intimate apparel catalogs, in full and in part, and information regarding the geographical distribution of the sales of these garments. You also argued that two rulings Customs had referred to as relevant to this issue, New York Ruling Letter (NY) A86954 of September 5, 1996, and NY B80230 of December 26, 1996, are distinguishable from the garments at issue as the garments classified in those rulings had full openings with snap closures in the back and not, as the “dusters” at issue here, in the front.

ISSUE:

Are the submitted garments classifiable as dresses of heading 6204, HTSUS, or as garments similar to bathrobes and dressing gowns in heading 6208, HTSUS?

LAW AND ANALYSIS:

Classification of goods under the Harmonized Tariff Schedule of the United States Annotated (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 and, provided such headings or notes do not otherwise require, according to [the remaining GRIs taken in order]."

The two headings at issue in regard to the classification of the subject merchandise are heading 6208, HTSUS, which provides for, among other things, women's nightdresses, pajamas, negligees, bathrobes, dressing gowns and similar articles; and heading 6204, HTSUS, which provides for, among other things, women’s woven dresses.

The Harmonized Commodity Description and Coding System Explanatory Notes (EN) provide little assistance in this particular case. The EN for heading 6208 describe the scope of the heading, in relevant part, as follows:

The heading also includes nightdresses, pyjamas, negliges, bathrobes (including beachrobes), dressing gowns and similar articles for women or girls' (garments usually worn indoors).

The EN, though not legally binding, do represent the official interpretation of the Harmonized System at the international level. The EN for heading 6204 refer to the EN for heading 6104 which provides no assistance in regard to the meaning or scope of the term “dresses”. The term “duster” does not appear in the tariff in relation to apparel.

As the EN to the headings are of no assistance, to determine the classification of the subject “dusters”, we must ascertain the common meaning of the term. It is a well-established tenet of customs law that tariff terms are construed in accordance with their common and commercial meanings and that the common meaning of a tariff term is a question of law. Toyota Motor Sales, U.S.A., Inc. v. United States, 7 Ct. of Int’l Trade 178, 182, 585 F. Supp. 649 (1984), aff'd, 753 F.2d 1061 (Fed. Cir. 1985). Thus, is it proper for Customs to turn to lexicographic sources to determining the meanings of the terms at issue. Once having determined the meaning of the terms, in deciding if the subject garments are within the eo nomine classification for dresses, Customs may consider the use of the merchandise. United States v. Quon Quon Co., 46 CCPA 70, 73, C.A.D. 699 (1959). Customs interprets the use of the merchandise to include the manner in which it is worn as well as the reasons for which it is worn.

Heading 6208, HTSUSA, provides for named articles which are identifiable by their use and may be characterized as "intimate apparel". They are garments which are recognized as either underwear (the singlets and other undershirts, slips, petticoats, briefs and panties), sleepwear (the nightdresses, pajamas and negligees), or garments normally worn indoors in the presence of family or close friends (the negligees, bathrobes and dressing gowns). See, HQ 956202 of September 29, 1994. The Court of International Trade in International Home Textile, Inc. v. United States, Slip Op. 97-31 Ct. Int’l Trade (March 18, 1997), aff’d 153 F.3d 1378 (Fed. Cir. 1998), stated in discussing a related provision, heading 6107, HTSUSA, which provides for men’s or boys’ knit or crocheted underpants, briefs, nightshirts, pajamas, bathrobes, dressing gowns and similar articles, that the goods of the heading are “characterized by a sense of privateness (underpants and briefs) or private activity (sleeping, bathing, and dressing).” Thus, to be classified in this heading, the subject “dusters” must be similar to the named articles of heading 6208, HTSUSA, i.e., be characterized by a sense of privateness or private activity.

In your submission, you describe the garments at issues as dusters or housedresses. You provided definitions from Webster’s Encyclopedic Unabridged Dictionary of the English Language (1989) for the following terms:
duster--a woman’s lightweight housecoat
housedress--a relatively inexpensive dress suitable for house work
housecoat--a loose one-piece, dress like garment for casual wear in the house
dress--the most common outer garment of women, consisting of waist and skirt in one piece
bathrobe--a long, loose garment, often tied with a belt of the same material, worn before and after a bath, over sleepwear, or as leisure wear at home
dressing gown--a tailored robe worn for lounging or for washing, shaving, applying make-up, etc.

Your argument appears to rely on the definition of a “duster” as a housecoat and the definition of a housecoat as a “garment for casual wear in the house.

You have presented evidence regarding the environment of sale, including documentation incidental to the sale of the merchandise, and evidence of the department which purchases and sells the merchandise. The purchase order and vendor invoice you have submitted are not helpful. They merely refer to the merchandise as “woven dusters” and indicate the merchandise was ordered by “Department 6”. You posit that Department 6 is responsible for “men’s and women’s socks, women’s underwear, women’s sleepwear, dusters, purses, sunglasses, women’s and children’s gloves, jewelry and women’s belts. Thus, since women’s dresses fall within the responsibility of another department, Department 4 & 7, it is inferred this supports a classification of the “dusters” as other than dresses as they are not bought or sold by the department responsible for dresses.

Customs has long held that the department in which merchandise is sold is not determinative of the classification of the merchandise. Although the environment of sale is a factor which may be considered in determining a garment's identity, Customs recognizes that sleepwear/loungewear departments often sell a variety of merchandise, for example, garments known as leisure wear (i.e., loose, comfortable clothing worn in or outside the home in a casual environment). This is especially true in women's fashions. See, HQ 955341 of May 12, 1994 and rulings cited therein; HQ 952105 of July 1992; HQ 085672 of October 29, 1989; HQ 951032 of May 7, 1992; and HQ 955088 of December 14, 1993.

You have submitted advertisements of “dusters” from competitors of your client, as your client does not have any advertising or marketing material on this merchandise. You submit that as the “dusters” are advertised next to sleepwear or on the same page as sleepwear and underwear, this supports classification as similar apparel in heading 6208, HTSUS. We would point out that in each advertisement the “duster” is clearly and separately identified. It has an identity separate and apart from that of sleepwear. This office searched for advertisements of these garments and found one by Montgomery Wards displaying a “duster” on the same page with sleepwear and a sundress. The caption at the top of the page read, “Sleepwear & Loungewear” [emphasis added]. In searching the internet for information on “dusters”, this office found these garments presented for sale identified either as simply “dusters” or characterized as loungewear or front-snap dresses.

As argued in your submission, “[t]he crucial factor in the classification of a garment is the garment itself.” Mast Industries, Inc. v. United States, 9 Ct. Int’l Trade 549 (1985), aff’d, 786 F.2d 1444 (Fed. Cir. 1986). However, we reach a different conclusion based upon our examination of the submitted garments than you do. The garments are appropriate for wear in the company of strangers, i.e., other than in the presence of family or close friends. The definition you cited from Webster’s of a housedress (another name for this merchandise), clearly defines the garment as a dress. Its definition as a casual garment for wear in the home while performing household tasks and its use as a garment worn over undergarments supports classification as a dress. In addition, cleaning one’s house is generally not viewed as a private activity akin to “sleeping, bathing, or dressing”, the type of activities referenced by the court in International Home Textile as those for which the garments of heading 6107, HTSUSA, (a related heading) would be worn. Someone wearing a “duster” such as those submitted for consideration, would not typically reach for a robe should the electrician, plumber or neighbor knock on the front door as the garment provides sufficiently suitable attire in the presence of strangers. The subject merchandise is as suitable for wear in public as any “typical” dress; just where one chooses to wear a “duster” may vary just as the styling of any garment will influence where one chooses to wear it.

The garments classified in NY A86954 of September 5, 1996, and NY B80230 of December 26, 1996, were identified as women’s “dusters”. They appear to differ from the garments before us in that the full snap opening in those garments was located in the rear of the garment whereas in this case the opening is in the front. It is our view that the location of the full snap opening does not change the character of these garments sufficiently to justify differences in classification. In both the NY ruling letters and here, the garments are clearly identified as “dusters” and would appear to be recognized commonly and commercially as of the same class or kind, regardless of the location of the full snap opening. The garments in the NY A86954 and NY B80230, women’s woven dusters with snap back closures, were classified as dresses of heading 6204, HTSUSA. We see no reason to classify the garments at issue herein differently.

As to the Textile Guidelines, they are just that, guidelines. The category designation description in the Guidelines for category 350 is “robes and dressing gowns.” If the garments before us were ambiguous in nature and lexicographic and other sources were insufficient aids to determine the classification of the garments, we would turn to the Guidelines for assistance in reaching a determination. However, as we have already determined that the subject merchandise is not similar to robes and dressing gowns classified in heading 6208, HTSUS, there is no reason to discuss the Guidelines further.

HOLDING:

The subject dusters, style numbers LH 50, LH 150, LH 200, and LH 250, (also identified, respectively by stock numbers 6-972-0142, 6-972-0177, 6-972-0185, and 6-972-0169), are classified as women’s cotton dresses in subheading 6204.42.3050, HTSUSA, textile category 336, dutiable at the general column one rate of 10.1 percent ad valorem. NY F81126 is affirmed.

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 your client 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, your client 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
Commercial Rulings Division

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