HQ 083799: Reconsideration of NYRL 836177 of February 9, 1989

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                                    HQ 083799

                                  June 16, 1989


      CLA-2 CO:R:C:G  083799  CMR

      CATEGORY: Classification

      TARIFF NO.: 6108.30.0010

      Ms. Julie White
      Nordstrom, Inc.
      A/P Import Office
      1321 2nd Avenue
      Seattle, Washington  98101

      RE: Reconsideration of NYRL 836177 of February 9, 1989

      Dear Ms. White:

           This ruling is in response to your request of February 21, 1989,
      for reconsideration of NYRL 836177.

      FACTS:

           The submitted sample, style 463P, is a women's chemise bikini
      set.  The set consists of a chemise and matching panty.  The chemise
      is a tank top style, sleeveless garment with a partial placket with
      six buttons that extends down the front from the neck.  The armholes
      and the bottom are trimmed with a narrow lace edging.  At the hip the
      bottom section of the garment is cut, sewn and gathered into a
      flounce.  The knit panty has elastic bands finishing the waistband
      and leg openings.  The chemise and panty are made of the same
      lightweight knit fabric consisting of 60 percent cotton and 40
      percent polyester fibers.  Style 463P is imported from Hong Kong.

           NYRL 836177 classified the chemise as a dress, and the matching
      panty as underwear.

      ISSUE:

           Are the garments of style 463P correctly classified in NYRL
      836177 as a dress and underwear, or are they classifiable as
      nightwear?














                                       -2-


      LAW AND ANALYSIS:

           In Mast Industries v. United States, 9 CIT 549, 552 (1985),
      aff'd, 786 F. 2d 1144 (1986), the court noted the definition of
      "nightwear" as "garments to be worn to bed."  The court held that the
      particular garment at issue was classifiable as nightwear since it
      was designed, manufactured, marketed and used as nightwear.

           The court in Mast Industries, Inc., supra, at 552 also noted
      that "the merchandise itself may be strong evidence of use."  United
      States v. Bruce Duncan Co., 50 CCPA 43, 46, C.A.D. 817 (1963).  Style
      463P is constructed of lightweight cotton knit fabric and designed to
      be loose fitting for comfort while sleeping.  Additionally, we agree
      it is not common practice to sell a dress for an adult with matching
      underwear as a set.  It is common practice, however, to sell
      nightshirts or similar garments with matching panties.

           Upon our request, you have submitted a copy of a purchase order
      to show that style 463P is indeed purchased by you as sleepwear.  In
      light of this evidence and after examination of the garments them-
      selves, we agree that style 463P is nightwear.

      HOLDING:

           NYRL 836177 is hereby revoked in full in accordance with 19 CFR
      177.9(d).

           Style 463P is classifiable as nightwear in subheading
      6108.31.0010, textile category 351, dutiable at 9 percent ad valorem.

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

           Your sample will be returned, under separate cover, as
      requested.


                                      Sincerely,



                                      John Durant, Director
                                      Commercial Rulings Division















      6cc: Area Director, New York Seaport
      1cc: CITA
      1cc: Legal Reference Section
      1cc: Phil Robins