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HQ 960541

December 9, 1997
CLA-2 RR:TC:TE 960541 jb


TARIFF NO.: 6208.91.1020

Patrick D. Gill, Esq.
Rode & Qualey
295 Madison Avenue
New York, NY 10017

RE: Request for Reconsideration of PD A85027; classification of children's bathrobe

Dear Mr. Gill:

This is in response to your letter, dated May 28, 1997, and subsequent submission of November 14, 1997, by Eleanore Kelly-Kobayashi, on behalf of your client, Hampton Industries, Inc., requesting reconsideration of Port Decision Letter (PD) A85027, dated July 11, 1996, which classified what you refer to as a "Playtowel" in heading 6208, Harmonized Tariff Schedule of the United States (HTSUS). A sample of the subject merchandise, which is manufactured in Turkey, was submitted for examination.


The subject merchandise, referred to as a "Playtowel", is made from 100 percent cotton terry cloth and features a hole cut out in the center to which a hood composed of the same cloth is sewn. The hood and the front of the article contain appliqu‚s representing Looney Tunes characters. The submitted sample is made with appliqu‚s representing Sylvester the Cat.

In PD A85027 the merchandise was classified in subheading 6208.91.1020, HTSUSA, which provides for, women's or girls' singlets and other undershirts, slips, petticoats, briefs, panties, nightdresses, pajamas, negligees, bathrobes, dressing gowns and similar articles: other: of cotton: bathrobes, dressing gowns and similar articles: girls'. You disagree with this classification determination. In your opinion the proper classification for this merchandise is in subheading 6302.60.0020, HTSUSA, which provides for, bed linen, table linen, toilet linen and kitchen linen: toilet linen and kitchen linen, of terry toweling or similar terry fabrics, of cotton: towels: other. In support of this classification you refer to two New York Rulings (NY), NY 807296, dated March 17, 1995, and NY A83093, dated May 24, 1996, which you state classify virtually identical merchandise in heading 6302, HTSUS.


What is the proper classification for the subject merchandise?


Classification of merchandise under the HTSUSA is governed by the General Rules of Interpretation (GRI's). GRI 1 requires that classification 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 GRI's will be applied, in the order of their appearance.

Heading 6208, HTSUS, provides for, among other things, bathrobes. Bathrobe is defined in Webster's Ninth New Collegiate Dictionary, 1991, at 135 as:
a loose usu. absorbent robe worn before and after bathing or as a dressing gown.

The definition of "bathrobe" turns on the word "worn". As stated by the same source at 1335, "to wear" is defined as:
a clothing or an article of clothing usu. of a particular kind; esp: clothing worn for a special occasion or popular during a specific period.

It is clear that a bathrobe is to be worn on the person as a garment. It is an article of clothing which has some form of styling, covers the wearer, and overall features some type of closure for modesty purposes.

The subject merchandise is distinguishable from the hooded towels classified in NY 807296 and NY A83093. In both those rulings the merchandise consisted of unformed, flat, rectangular towels having some additional working to accommodate the wearers' heads. The towel in NY A83093 featured a triangular piece at one corner which formed a pocket; the towel in NY 807296 featured a hood-like portion, resembling a bunny rabbit, sewn to the center edge of one long side. Neither towel had a means of closure. The towels could not be worn as a bathrobe, but merely draped over the wearer's head.

The subject merchandise fits over the wearer's head like a poncho. As stated in the above referenced source, at 914, "poncho" is defined as:
a cloak resembling a blanket with a slit in the middle for the head; a waterproof garment resembling a poncho worn chiefly as a raincoat.

In Essential Terms of Fashion, 1986, at 149, "poncho" is defined as:

1. fashion item shaped like a small blanket either square or rectangular with hole in center for the head, frequently fringed. Popular in the late 1960s. 2. Utilitarian garment consisting of waterproofed fabric with a slash in the center for the head.

In fact, the submitted sample is identified in the cardboard wrapper band in which it is sold as a "Poncho style cover-up". The self-adhesive paper strip which accompanies the wrapper band illustrates the poncho style cover-up being worn by a child. Thus, while the subject garment is not a robe per se in that it lacks sleeves, it does have several bathrobe features: it is composed of absorbent cotton terry, it is used before and after bathing, and it covers the wearer in the front and back for modesty purposes.

Finally, in past rulings Customs has stated that the crucial factor in the classification of a garment is the garment itself. As stated by the court in Mast Industries, Inc. v. United States, 9 CIT 549, 552 (1985), aff'd 786 F.2d 1144 (CAFC, April 1, 1986), "the merchandise itself may be strong evidence of use". However, when presented with a garment which is ambiguous in appearance, Customs will look to other factors such as environment of sale, advertising and marketing, recognition in the trade of virtually identical merchandise, and documentation incidental to the purchase and sale of the merchandise. It should be noted that Customs considers these factors in totality and no single factor is determinative of classification as each of these factors viewed alone may be flawed. For instance, Customs recognizes that internal documentation and descriptions on invoices may be self-serving as was noted by the court in Regaliti, Inc. v. United States, Slip Op. 92-80. Similarly, we cannot view the single documentation submitted by you from Warner Brothers identifying the subject merchandise as a towel to be substantive proof of its classification.

The fact that the subject merchandise will be displayed in the linen/domestics department of department stores does not conclusively prove that the merchandise should be classified as towels. The subject articles are considered "novelty items" designed for children's use and as such are offered for sale in various retail environments. It is not unwarranted to find novelty bathrobes for children such as these together with related articles such as linen to be used for the bath.

Accordingly, the subject merchandise was properly classified in heading 6208, HTSUS.


The subject merchandise was properly classified in subheading 6208.91.1020, HTSUSA, which provides for, women's or girls' singlets and other undershirts, slips, petticoats, briefs, panties, nightdresses, pajamas, negligees, bathrobes, dressing gowns and similar articles: other: of cotton: bathrobes, dressing gowns and similar articles: girls'. The applicable rate of duty is 8.2 percent ad valorem and the quota category is 350.

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 negotiations and changes, we suggest that your client check, close to the time of shipment, the Status Report 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 status of any import restraints or requirements.


John Durant, Director

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