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HQ 964870




September 5, 2002

CLA-2 RR:CR:TE 964870 RH

CATEGORY: CLASSIFICATION

TARIFF NOS.: 6204.42.3030; 6204.42.3050

Mr. M. Barry Levy
Sharretts, Paley, Carter & Blauvelt, P.C. Seventy-five Broad Street
New York, NY 10004

RE: Request for Reconsideration of NY G85592; Duster; Dress; Robe; Housedress; Housecoat; Heading 6204; Heading 6208; 19 U.S.C. §1625

Dear Mr. Levy:

This is in reply to your letters of February 26 and June 4, 2001, on behalf of Kmart Corporation, requesting reconsideration of New York Ruling Letter (NY) G85592, dated January 26, 2001. In your letter, you also claim a treatment under 19 U.S.C. §1625.

FACTS:

In NY G85592, Customs classified the garments at issue (styles 6333, 6367, 6371, 1158 and 7376) as dresses under subheading 6204.42 of the Harmonized Tariff Schedule of the United States (HTSUSA).

A description of the garments in NY G85592 reads:

Style 6333 features short sleeves, a V-neckline, two pockets below the waist and a full front opening secured by snap closures. The front yoke is embellished with embroidery and there is contrasting colored capping around the neckline, sleeve edges and front opening.

Style 6367 features short sleeves, a V-neckline with a self-fabric tie, two pockets below the waist and a full front opening secured by six snap closures. The front yoke and sleeve edges are quilted.

Style 6371 features short sleeves, a V-neckline, two pockets below the waist and a full front opening secured by seven buttons. The front yoke is embellished with embroidery.

Style 1158 features short sleeves, a round neckline, two pockets below the waist and a full front opening secured by eight snap closures. The front and back yokes, sleeve and pocket edges are of a contrasting colored print.

Style 7376 features short sleeves, a round neckline, side seam pockets, an applique on the right front panel and a full front opening secured by seven snap closures. The neckline, sleeve edges and front yoke have a contrasting colored trim.

You claim that the garments at issue are classifiable in heading 6208, HTSUS, which provides for, among other things, bathrobes, dressing gowns and similar articles.

ISSUE:

Are the garments at issue classifiable under heading 6208, HTSUS, as bathrobes, dressing gowns and similar articles, or under heading 6204, HTSUS, as dresses?

LAW AND ANALYSIS:

Classification of goods under the HTSUS 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. Where goods cannot be classified solely on the basis of GRI 1, the remaining GRIs will be applied, in their appropriate order.

Additionally, the Explanatory Notes (ENs) to the Harmonized Commodity Description and Coding System constitute the official interpretation of the nomenclature at the international level. The ENs are not legally binding. However, they do represent the considered views of classification experts of the Harmonized System Committee. It has therefore been the practice of the Customs Service to follow, whenever possible, the terms of the ENs when interpreting the HTSUS.

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 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, négligés, bathrobes (including beachrobes), dressing gowns and similar articles for women or girls (garments usually worn indoors).

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 determine 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. See Headquarters Ruling Letter (HQ) 963771, dated March 31, 2000.

In your submission, you describe the garments at issue as dusters or housedresses. The following definitions were adopted in HQ 963771:
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.

You state that the dusters in issue are used by women as housecoats after taking a shower, while putting on make-up, eating breakfast, and answering the door to an unexpected visitor and are part of the same class or kind of merchandise as robes and dressing gowns. Specifically, you state that:

The duster is simply one particular type of robe or dressing gown, and the most public use thereof might be a quick trip down the driveway to pick up the newspaper, hoping the neighbors are not looking. No self-respecting woman would wear these dusters out of the house in the same manner as a dress. The fact that a duster or housecoat is worn over underwear does not in any way detract from this conclusion.

As part of your claim that the garments at issue are not dresses, you emphasize that “common features for dusters” include a loose silhouette, full front openings secured by buttons or snaps, pockets below the waist, knee or calf length, and lightweight material. To support that claim, you cite several rulings in which Customs classified garments with those characteristics in heading 6208, HTSUS. We note, however, that these garments also had features that are not similar to the garments at issue.

For example, in PD A85276, dated July 23, 1996, while the garment had certain features similar to the garments at issue such as pockets below the waist, a full front opening with eight covered buttons and a straight hemmed bottom, it also had different features, i.e., scalloped neckline, short scalloped raglan sleeves, flower embroidery and appliques – moreover the importer referred to the garment as a “nightgown.” The garment in PD D87747, dated March 1, 1999, had a V-neck, full front opening with 6 snap closures, short hemmed sleeves and a straight hemmed bottom, but unlike the instant garments, it had side seam pockets, and was made of knit fabric. In NY G82092, dated October 6, 2000, the garment also featured pockets below the waist, a full front opening secured by seven snap closures. However, unlike your client’s garments, that garment had ¾ length sleeves, a collar, and ruffles on the collar, pockets and sleeves. In HQ 962385, dated July 27, 1999, the terry knit garment had a U-neck and was sleeveless. The garments in NY C82155, dated December 3, 1997, were hooded garments referred to as beach cover-ups. NY 813385, dated August 29, 1995, is not relevant as it pertains to the classification of a personal planner.

Moreover, as you know, garments that share features in common are not necessarily classified under the same tariff provisions. Each garment is considered on a case by case basis and classified based on the totality of its features. For example, in DD 892322, dated November 30, 1993, (issued to Kmart), Customs classified a garment that was 100 percent cotton woven flannel, below-the-knee in length, featuring a full frontal opening with eight button closure, empire styling, and two side seam pockets below the waist, in heading 6208, HTSUS. However, in NY B87653, dated July 31, 1997, Customs classified a 100 percent cotton woven flannel dress, with side seam pockets, long sleeves and a full front opening secured by ten buttons, as a dress in heading 6204, HTSUS.

Additionally, Customs has classified many garments that share features in common with the garments in the rulings you cite, as dresses under heading 6204, HTSUS. See HQ 963771, dated March 31, 2000; NY B87255, dated July 29, 1997; NY C85880, dated April 21, 1998; NY I81922, dated June 3, 2002; NY 876188, dated July 22, 1992; NY A87015, dated August 30, 1996; NY I81975, dated June 7, 2002; NY G80574, dated August 18, 2000; NY 899022, dated June 20, 1994; NY B86799, dated July 29, 1997. Admittedly, these garments also have features not present in the rulings cited to support your position.

In International Home Textile, Inc. v. United States, Ct. Int’l Trade Slip. Op. 97-31, dated March 18, 1997, aff’d 153 F. 3d 1378 (Ct. of App’ls for Fed. Cir.1998), the Court of International Trade held that articles encompassed under heading 6107 (underpants, briefs, nightshirts, pajamas, bathrobes, dressing gowns and similar articles) are characterized by a sense of privateness (underpants and briefs) or private activity (sleeping, bathing and dressing). The court pointed out that loungewear, on the other hand, may be worn at informal social occasions in and around the home, and for other nonprivate activities such as watching movies with guests, barbecuing at a backyard gathering, doing outside home and yard maintenance work, washing the car, walking the dog, etc.

We disagree with you that the garments at issue are characterized by privateness or private activity. We find that the garments are dusters, housedresses or housecoats, akin to loungewear as described by the court in the International Home Textiles case. They are of the class or kind of garment worn by many women in the home to do housework, watch television, work in the yard, and as you state, could be worn to answer the door to an unexpected visitor. Moreover, unlike bathrobes which are intended to be worn over pajamas or other sleepwear, the garments in question are of the type worn over brassieres and other underwear garments.

Finally, we are not persuaded by the Kmart circulars or the letters from Kmart store managers stating that the dusters have been considered by the trade to be sleepwear. 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, dated July 1992; HQ 085672, dated October 29, 1989; HQ 951032, dated May 7, 1992; and HQ 955088, dated December 14, 1993.

The second issue raised is a claim of treatment under 19 U.S.C. §1625. You list three reasons why Kmart meets the burden for establishing a treatment by Customs with respect to its garments:

Finding of a treatment in this case would be consistent with Customs prior practice in similar circumstances; Kmart obtained a binding ruling wherein dusters comparable to those presently at issue were classified as robes; and Kmart has been entering comparable garments as robes at multiple ports for years without incident.

The revocation procedures set forth in section 625 of the Tariff Act of 1930, as amended, 19 U.S.C. §1625 (1993), read:
c) Modification and revocation

A proposed interpretive ruling or decision which would –
modify (other than to correct a clerical error) or revoke a prior interpretive ruling or decision which has been in effect for at least 60 days; or

(2) have the effect of modifying the treatment previously accorded by the Customs Service to substantially identical transactions;
shall be published in the Customs Bulletin. The Secretary shall give interested parties an opportunity to submit, during not less than the 30-day period after the date of such publication, comments on the correctness of the proposed ruling or decision. After consideration of any comments received, the Secretary shall publish
a final ruling or decision in the Customs Bulletin within 30 days after the closing of the comment period. The final ruling or decision shall become effective 60 days after the date of its publication.

We have already distinguished the rulings cited in your submission, including DD 892322, and found that the garments in those cases were not the same or substantially similar to the instant merchandise. Moreover, the holding in NY G85592 was correct. Therefore, the revocation procedures set forth in 19 U.S.C. §1625(c)(1) do not apply to any of those rulings.

With regard to 19 U.S.C. §1625(c)(2), you claim that Kmart made over 400 entries of “dusters” at a wide variety of ports in the past three years, and consistently classified them under heading 6208, HTSUS. Exhibit Two is a list of the entries dating back to January 1998. You state that the entries were all liquidated as entered starting on December 11, 1998. You further state that it was not until December 2000 that Kmart had any reasons to re-examine the classification of its dusters. At that time, a few shipments were rejected by Customs and reclassified under heading 6204, as dresses. Additionally, you state that Kmart placed at least 33 purchase orders covering 60,000 dozen dusters in reliance on Customs continuous and consistent treatment of its dusters, prior to the issuance of NY G85592. Accordingly, you argue that failure to grant the request for treatment will cause Kmart irreparable harm, in as much as the company will be forced to secure dress quota or refuse shipments.

To substantiate a claim for treatment under 19 U.S.C. §1625(c)(2), Customs requires evidence of a consistent classification treatment by it on identical or substantially identical transactions. The showing must go back two years prior to the date of the last liquidated entry subject to the claim. The entry information must include a list of every entry of the merchandise both liquidated and unliquidated up to the point where your client was advised to change the classification to that asserted by Customs, the entry number, port of entries, and it must identify any entries that were subject to examination by Customs. The request must also provide the tariff classification, dollar value and the volume of the merchandise. We also require a statement from the importer or his designee that there have been no entries of the merchandise under a tariff provision different from the claimed treatment provision for the same or similar merchandise. This information will then be verified with the affected ports.

The information you have provided up to this point does not substantiate that your client is entitled to a treatment. You claim that Kmart entered the garments in question in reliance on DD 892322, dated November 30, 1993, in which Customs classified a Kmart flannel garment in heading 6208, HTSUS. However, as pointed out earlier in this decision, that garment is not the same or
substantially similar to the garments the subject of NY G85592, currently under reconsideration. We have no samples, or even invoices, for merchandise covering the list of entries you provided, and no basis for knowing if there was a treatment of classifying “the same or substantially similar” garments under heading 6208, HTSUS.

HOLDING:

NY G85592 is AFFIRMED. The revocation procedures set forth in 19 U.S.C. §1625(c)(1) do not apply to the revocation of NY G85592, dated January 26, 2001. Furthermore, Kmart has not submitted sufficient evidence to establish a treatment under 19 U.S.C. §1625(c)(2).

Styles 6333 and 6371 are classifiable under subheading 6204.42.3030, HTSUS, as other dresses of cotton with two or more colors in the warp and/or the filling.

Styles 6367, 1158 and 7376 are classifiable under subheading 6204.42.3050, HTSUS, as other dresses of cotton.

All the garments are dutiable at the general column one rate at 9.2 percent ad valorem and the textile category is 336.

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 renegotiations and changes, to obtain the most current information available, we suggest that your client check, close to the time of shipment, the Status 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 applicability of any import restraints or requirements.

Sincerely,

Myles B Harmon, Acting Director
Commercial Rulings Division

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