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HQ 964926




August 9, 2001

CLA-2 RR:CR:TE 964926 BAS

CATEGORY: CLASSIFICATION

TARIFF NO.: 6204.43.4030

Frank J. Desiderio
Grunfeld, Desiderio, Lebowitz, Silverman & Klestadt LLP Counselors at Law
245 Park Avenue
33rd Floor
New York, New York 10167-3397

RE: Classification of Women’s Garments; Caftans

Dear Mr. Desiderio:

This is in reply to your letter, dated January 29, 2001, on behalf of Winlar Management, Ltd. requesting a binding ruling concerning several women’s garments. You submitted several samples of the garments to aid us in our determination.

FACTS:

The merchandise under consideration is women’s garments, Style Nos. 156-4457, 104-4301, 000-4432 and 142-4479. The garments are 100 percent polyester pullover tunics which are ankle length. They are all labeled “one size fits most.”

Styles 104-4301, 142-4479 share the same silhouette, straight cut tunics with clearly defined sleeves, Style 104-4301 features short, batwing or dolman styled sleeves, a v-neckline and side slits extending upward from the hem approximately 11 ¼ inches. The neck opening and sleeves have a contrasting colored fabric trim. Style 142-4479 features ¾ length, kimono styled sleeves, a keyhole opening at the neck with self-fabric ties and side slits extending upward from the hem approximately 14 inches.

Style 156-4457 and 000-4432 also share a similar silhouette. These styles are made from rectangular panels, slightly curved at the bottom edges, stitched together at the shoulders. They appear to be open at the sides, but are in fact stitched together approximately 1 ¾ inches from the outer edges. While the inquirer describes the garments as being sleeveless, the construction allows the fabric to drape over the arms to the vicinity of the elbows without projecting actual sleeves beyond the body of the garment.

The garments are being imported from Pakistan.

In support of classification of the subject garments as bathrobes or dressing gowns, in heading 6208, HTSUS, you have provided a letter from Winlar Management, Ltd., the importer, several pages from catalogs which advertise the garments and letters from Ross Stores and Catherine Stores indicating that the garments are displayed with other sleepwear and robes.

ISSUE:

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

LAW AND ANALYSIS:

Classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) is made in accordance with the General Rules of Interpretation (GRI). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative Section or Chapter Notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs may then be applied.

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, which provides for, among other things, women’s dresses.

When interpreting and implementing the HTSUS, the Explanatory Notes (EN) of the Harmonized Commodity Description and Coding System may be utilized. The EN, while neither legally binding nor dispositive, provide a guiding commentary on the scope of each heading, and are generally indicative of the proper interpretation of the HTSUS. Customs believes the ENs should always be consulted. See T.D. 89-90, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

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 negligees, 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 “caftan” does not appear in the HTSUSA.

As the EN to the headings are of no assistance, to determine the classification of the subject “caftans”, 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 Intl’ Trade 178,182, 585 F.Supp. 649 (1984), aff’d, 753 F.2d 1061 (Fed.Cir. 1985). Thus, it is 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 or robes, 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.

The following definitions, in pertinent part are set forth in Webster’s II New College Dictionary, 1999:

Caftan - a full length long-sleeved, often loose-fitting tunic worn chiefly in the Near East.

Tunic – 1. A loose fitting sleeved or sleeveless garment extending to the knees and worn esp. by ancient Greeks and Romans. or 2 c. A short pleated and belted dress worn by women for some sports.

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.

In International Home Textile, Inc, v. U.S. 153 F.3d 1378 (CAFC 1998), the Court addressed a related provision, Heading 6107, which includes “men’s and boys’ underpants, briefs, nightshirts, pajamas, bathrobes, and dressing gowns.” The Court held that all the exemplars in 6107 in their principal use “evoke a sense of privacy.” That is, the goods of heading 6208 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 “caftans” must be similar to the named articles of heading 6208, i.e., be characterized by a sense of privateness or private activity.

Nothing in the definition of caftan, a full length loose-fitting tunic, indicates that it is a garment that is “characterized by private activity” as are the exemplars in heading 6208. The fact that the garment is long and loose may make the merchandise comfortable for sleeping but a visual examination of the articles reveal that they are not made of a flimsy or see through material that would require that the garment be worn only in private.

In International Home Textile, the Court held that the assorted men’s loungewear garments at issue were distinct from underpants, briefs, nightshirts, pajamas dressing gowns, and bathrobes in that they could be worn outdoors and in public view, could be worn while exercising outdoors or away from home, and could be worn for informal entertaining. (Emphasis added) By contrast, underwear, pajamas and bathrobes, etc. would not normally be so used.

Similarly, the caftans in the instant case are distinguishable from the exemplars in heading 6208 in that all of the exemplars in 6208 also evoke a sense of privacy. Like the loungewear in International Home Textile, the caftans can be worn outdoors and in public view and can be worn away from home or for informal entertaining. A singlet, slip, brief, panty, negligee or pajamas would not be used in such a fashion.

You argue that the cut of the garment (i.e. the high side slits, low necklines and over-sized arm holes) and loose fitting nature renders it too revealing for use in non-private activity around the home such as entertaining guests or walking the dog. A visual examination of the merchandise indicates that with the abundance of material, however, they could hardly be described as “too revealing.” Although the garments have side slits, they are not revealing as the garments are ankle length and the slits are only approximately 14 inches from the hem. Accordingly, the side slits in the garments fall below the knee on a woman of average height. In addition although the armholes are over sized, there is an abundance of material which covers the opening and the material falls to the elbow. Style 142-4479 has ¾ length sleeves, which fall to the wrist on a woman of medium height and build. Although the other styles do not appear to have sleeves per se, the material hangs down below the elbow on a woman of average height and weight. None of the necklines of these garments is low enough to be considered revealing. Thus we disagree with your assertion that these garments are too revealing for use in non-private activity around the home.

You argue that Winlar’s customers purchase these garments as robes and market them as such. In addition you assert that the garments are robes because the stores sell these styles in the intimate apparel departments only, and the catalog sellers only display the garments with pajamas, negligees and other items of intimate apparel.

Customs has long held, however, that an importer’s claim that the merchandise is sold in a sleepwear department is not conclusive of its classification. See HQ955341, May 12, 1994; HQ085672, October 29, 1989. It is well established that intimate apparel departments include merchandise other than intimate apparel. HQ 955341, May 12, 1994. Customs has long recognized that intimate apparel/sleepwear departments often sell a variety of merchandise, some of which may be intended for use as leisurewear or outerwear. This is especially true in women’s fashions. See HQ 963771, March 31, 2000; HQ 955341, May 12, 1994; HQ 955088, December 14, 1993; HQ 952105, July 21, 1992; HQ 951032, May 7, 1992; HRL 085672, October 29, 1989. In many cases, garments sold in these departments are indistinguishable from those sold elsewhere.

In Mast Industries v. United States, 9 C.I.T. 549, 552 (1985), aff’d, 786 F.2d 144 (Fed. Cir. 1986), the court discussed the standards to be considered in classifying garments under the nightwear provisions. In that case, the Court considered the classification of a garment claimed to be nightwear and the Court determined, that because the garment at issue was designed, manufactured, marketed and used as nightwear, it was classifiable as nightwear, despite its resemblance to sportswear and suitability for use as sportswear. The same factors have been used in classifying pajamas, nightdress, and similar garments under the HTSUSA. See HQ 955341, May 12, 1994; HQ 085672, October 29, 1989.

The only evidence submitted regarding the design of the garments is the importer’s letter stating that the garments are designed as robes and used by customers as robes. When goods are not clearly sleepwear, evidence of marketing in the United States as sleepwear is a factor in classification. See HQ 085672, October 29, 1989. In determining whether a particular garment is to be worn to bed for sleeping, Customs will consider the sample itself and whatever information the importer can supply about how the garment will be marketed and sold. We must also consider how the same or virtually the same article is advertised and sold by others. With regard to documentation in support of a claimed classification, letters of credit, purchase orders, contracts, confirmations and other documentation incidental to the purchase of the merchandise cannot be regarded as conclusive. These documents can be self-serving and do not necessarily reflect how merchandise is advertised in the US. market. Accordingly, in the instant case, counsel’s letter from the importer and the two buyers are not conclusive and do not in our view reflect how the merchandise is marketed in the U.S. market.

A survey of advertisement of caftans on the Internet reflects that they are marketed as both “loungewear” and as dresses. For example on one site a caftan was described as “great for lounging around the house or running to the store.” Caftans were advertised on many sites as “handmade ethnic fashions” originating from the Islamic, Balinese and Moroccan cultures. Caftans were also marketed towards “plus size” women. They were often advertised as being very comfortable. The garments are marketed as garments that would be appropriate for wear in the company of strangers, i.e. other than in the presence of family or close friends. Lounging around the 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. The subject merchandise is as suitable for wear in public as any “typical” dress.

Having determined that the subject merchandise is not esjudem generis with the exemplars of heading 6208 and that caftans are not designed, manufactured and marketed as robes in the U.S. market, we must evaluate whether or not the garments are classifiable as dresses in Heading 6204, HTSUSA. Heading 6204 provides for “Women’s or girls’ suits, ensembles, suit-type jackets, blazers, dresses, skirts, divided skirts, trousers, bib and brace overalls, breeches and shorts (other than swimwear).”

According to Webster’s II New College Dictionary, 1999, a dress is defined, in part, as “2). A one-piece outer garment for women and girls.” The subject merchandise consists of one piece outer garments for women or girls and therefore the garments are properly classifiable in Heading 6204. This holding is consistent with other rulings in which caftans have been classified as dresses. See HQ 957279, February 10, 1995; NY C84707, March 9, 1998 (ruling that a caftan was classifiable in 6204 because it is suitable for wear on informal social occasions in and outside the home). It is also consistent with rulings in which loose fitting pullover garments extending from the shoulder to the thighs or lower have been excluded from classification as sleepwear because the garment afforded the wearer adequate coverage to be modestly dressed while appearing in public. See HQ 963771, March 31, 2000; HQ 079931, December 1, 1988.

HOLDING:

The caftans, composed of 100 percent polyester, are classifiable in subheading 6204.43.4030, HTSUSA, which provides for “Women’s or girls’ suits, ensembles, suit-type jackets, blazers, dress, skirts, divided skirts, trousers, bib and brace overalls, breeches and shorts (other than swimwear): Dresses: Of synthetic fibers: Other: Other; Other: Women’s.” The general column one rate of duty is 16.3 percent ad valorem. The textile quota category applicable to this provision is 636.

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 the consignee 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, the consignee should contact the local Customs office prior to importing the merchandise to determine the current applicability of any import restraints or requirements.

Sincerely,

John Durant, Director
Commercial Rulings Division


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