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HQ 965748




December 2, 2002

CLA-2 RR:CR:TE 965748 ASM

CATEGORY: CLASSIFICATION

TARIFF NO.: 6108.92.0030

Ms. Kim Young
BDP International, Inc.
Global Logistics & Transportation
2721 Walker Avenue N.W.
Grand Rapids, MI 49504

RE: Revocation of NY I82773; Classification of Woman’s Knit Garment

Dear Ms. Young:

This letter is to inform you that in response to a letter, dated June 20, 2002, on behalf of Meijer Distribution, Inc., Customs has reconsidered New York Ruling Letter (NY) I82773, dated June 7, 2002, which involved the classification of a women’s garment under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). A sample was submitted to this office for examination.

Pursuant to section 625(c)(1) Tariff Act of 1930 (19 U.S.C. 1625(c)(1)) as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act (Pub. L. 103-182, 107 Stat. 2057, 2186), notice of the proposed revocation of NY IA2773 was published on October 23, 2002, in the Customs Bulletin, Volume 36, Number 43. As explained in the notice, the period within which to submit comments on this proposal was until November 22, 2002. No comments were received in response to this notice.

FACTS:

The submitted garment, item number 713754, is constructed from 50 percent cotton and 50 percent polyester knitted fabric. The garment is white and features openwork knit fabric that resembles netting interspersed with squares. The garment also has a round neckline, short sleeves, a full front opening with
zipper closure and decorative pull-tab. The bottom edge of the garment has a turned hem. The neckline and shoulder seams have been edged with white knit piping. The sleeves feature a turned cuff with the same white knit piping sewn approximately 2 inches above the lower edge of the cuff. The importer indicates that the garment also includes a logo tag of “Wave Zone”™, sewn to the inside of the neckline. The importer, Meijer Distribution, Inc., asserts that this is a private label name for apparel sold exclusively in the swimwear department. The importer further claims that the garment will be marketed with swimwear and sold with the intention of being a cover-up for use with swimwear.

In NY I82773, dated June 7, 2002, Customs classified the item number 713754, as a woman’s cardigan in subheading 6110.30.3055, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), which provides for sweaters, pullovers, sweatshirts, waistcoats (vests) and similar articles, knitted or crocheted. You have asserted, on behalf of your client, that the article should be classified, as a beach robe, in heading 6108, HTSUSA.

ISSUE:

What is the proper classification for the merchandise?

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 GRI may then be applied. The Harmonized Commodity Description and Coding System Explanatory Notes (“ENs”) constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

Heading 6108, HTSUSA, covers “Women’s or girl’s slips, petticoats, briefs, panties, nightdresses, pajamas, negligees, bathrobes, dressing gowns and similar articles, knitted or crocheted”. The EN to heading 6108 specifically notes that the reference to “bathrobes” in the heading is intended to include “beachrobes”. In addition, the Guidelines for the Reporting of Imported Products in Various Textile and Apparel Categories (“Textile Guidelines”), CIE 13/88,
provides the following guidance regarding the characteristics of dressing gowns, including bath robes, beach robes, lounging robes and similar apparel:

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

Looseness.
Length, reaching to the mid-thigh or below.

Usually a full or partial front opening, with or without a means of closure. Sleeves are usually, but not necessarily, present.

The subject article has been designed to have a very loose/boxy fit. The length of the garment falls from the shoulder to the mid-thigh, there is a full zippered opening, and the garment has short sleeves. As such, the garment bears all four characteristics, as set forth in the Textile Guidelines, for beach robes.

In previous rulings, Customs has relied on the decision in Mast Industries v. United States, 9 CIT 549, 552 (1985), aff’d, 786 F. 2d 1144 (1986), in which the Court noted that “the merchandise itself may be strong evidence of use.” In this instance, the subject merchandise has been designed to provide a fashionable cover-up over a swimsuit. In the instant case, we note that the fabric used to construct the subject garment is not particularly absorbent. However, the openwork net design is breathable and allows the suit to air dry more efficiently. Although Customs has previously emphasized the absorbent nature of some beach robes, absorbency is not the only criteria for beachwear. The term “beachwear” is defined in Mary Brooks Picken’s, A Dictionary of Costume and Fashion, Historic and Modern, as “All clothes or accessories designed for wear on beach or in water.” Furthermore, there is evidence that the garment is marketed, advertised, and sold exclusively with swimwear.

In view of the foregoing, it is Customs decision that the garment is properly classified as a beach robe in heading 6108, HTSUSA. This is consistent with our decision in the following Customs rulings: HQ 088266, dated March 22, 1991; HQ 958860, dated November 29, 1996; NY PD A86368, dated August 16, 1996; NY C81781, dated December 12, 1997. In particular, Customs has issued rulings classifying women’s garments of open crochet knit fabric or finely knit mesh fabric as beach robes classifiable in heading 6108, HTSUSA. See, respectively, NY H80783, dated June 20, 2002, and PD G82905, dated November 16, 2000.

It is also Customs decision that NY I82773, dated June 7, 2002, incorrectly classified the subject garment as a woman’s cardigan in subheading 6110.30.3055, HTSUSA.

HOLDING:

NY I82773, dated June 7, 2002, is hereby revoked.

The subject merchandise, identified as item number 713754, is correctly classified in subheading 6108.92.0030, HTSUSA, which provides for, “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 general column one duty rate is 16.2 percent ad valorem. The textile category is 650. We note that textile category code 650 has been fully integrated. Accordingly, there are no applicable quota/visa requirements for the products of World Trade Organization (“WTO”) members. The textile category code only applies to merchandise produced in non-WTO member countries.

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 that the importer, by copy of this letter, be advised to 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. The Status Report on Current Import Quotas (Restraint Levels) is also available on the Customs Electronic Bulletin Board (CEEB) which can be found on the U.S. Customs Service Website at www.customs.gov.

Due to the changeable nature of the statistical annotation (the ninth and tenth digits of the classification) and the restraint (quota/visa) categories applicable to textile merchandise, you should contact your local Customs office prior to importation of this merchandise to determine the current status of any import restraints or requirements.

In accordance with 19 U.S.C. 1625(c), this ruling will become effective 60 days after its publication in the Customs Bulletin.

Sincerely,

Myles B. Harmon, Acting Director
Commercial Rulings Division

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