HQ 954299: Oversized women's knit garments; HRL 953907; modification of NYRL 883224; headings 6104, 6108 and 6110; knit dresses; knit pullovers; loungewear and sleepwear

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 954299

                       September 14, 1993


CLA-2 CO:R:C:T  954299 NLP

CATEGORY: Classification

TARIFF NO.: 6104.43.2010

Ms. Susan Kearney 
Wal- Mart Stores, Inc.
702 S.W. 8th Street
Bentonville, Arkansas  72716

RE:  Oversized women's knit garments; HRL 953907; modification of
     NYRL 883224; headings 6104, 6108 and 6110; knit dresses;
     knit pullovers; loungewear and sleepwear

Dear Ms. Kearney:

     This is in response to your letter of May 23, 1993, in which
you requested a reconsideration of District Ruling Letter (DD)
881895, dated February 1, 1993, and New York Ruling Letter (NYRL)
883224 dated March 23, 1993, which dealt with the classification
of women's knit garments.  Samples of both garments were
submitted for our examination.

FACTS:

     The first sample, style SIUN-5LSP/J/V/B, is a women's knit,
oversized garment made from 85% polyester and 15% cotton.  The
interior fabric is napped, while the exterior surface is knit
with more than nine stitches per two centimeters measured in the
horizontal direction.  The garment features long sleeves with rib
knit cuffs, a mock turtleneck and a hemmed bottom which extends
to the knee.  The shoulder seams drop three to four inches beyond
the wearer's natural shoulder line.  The invoice refers to this
garment as a "fleece skimp."

     DD 881895 classified this garment in subheading
6104.44.2010, HTSUS, which provides for "[w]omen's or girls'
suits, ensembles, suit-type jackets, blazers, dresses...knitted
or crocheted: [d]resses: [o]f artificial fibers: [o]ther:
[w]omen's.  The rate of duty is 17% ad valorem and the textile
category code is 636.

     The second garment, style FJGL-5LSW/R/B/H, is also a women's
knit oversized garment made from 75% polyester, 15% rayon and 10%
cotton.  The interior fabric is napped and the outer surface is
constructed with more than nine stitches per two centimeters
measured in the horizontal direction.  It has a round rib-knit
neck, long sleeves with rib knit cuffs and a hemmed bottom.  The
invoice also refers to this garment as a "ladies knit skimp."  

     According to NYRL 883224, the garment extended to the "mid-
thigh area."  Although the statements as to the length of the
sample in each of the subject rulings do not exactly coincide,
the two samples currently before us are the same length.  When
worn by an adult women of average height, both samples extend to
the knees.  Therefore, we will treat this sample as being knee
length.  

     NYRL 883224 classified this garment in subheading
6110.30.3055, HTSUS, which provides for "[s]weaters, pullovers,
sweatshirts, waistcoats (vest) and similar articles, knitted or
crocheted: [o]f man-made fibers: [o]ther: [o]ther: [o]ther:
[w]omen's or girls'.  The rate of duty is 34.2% ad valorem and
the textile category code is 639.

     It is your position that the subject garments are skimps,
nightdresses which are to be worn as loungewear in the evenings.
Therefore, you contend that they are neither dresses nor
pullovers and they should be classified in subheading
6108.92.0030, HTSUS, which provides for "[w]omen's or girls'
slips, petticoats, briefs, panties, nightdresses...and similar
articles, knitted or crocheted: [o]ther: of man-made fibers:
[o]ther: [w]omen's."  The rate of duty is 17% ad valorem and the
textile category code is 650.

     In support of your position, you state that the garments
will be marketed in your sleepwear division and you supplied a
copy of your advertisement for the skimps.  The advertisement
portrays a women with the skimp on curled up on a couch.  The
text under the picture states "Ladies Fleece Skimps are long
sleeved with a mock turtleneck...cotton/polyester..."  

ISSUE:

     Whether the two garments at issue are classifiable as
dresses in subheading 6104.44.2010, HTSUS, as pullovers in
subheading 6110.30.3055, HTSUS, or as similar articles in
subheading 6108.92.0030, HTSUS? 

LAW AND ANALYSIS:

     Headquarters Ruling Letter (HRL) 953907, issued to you on
July 29, 1993, reviewed DD 881895 and discussed whether sample
SIUN-5LSP/J/V/B was classified as a pullover or a dress.  HRL
953907 held that the sample garment was classified as a dress in
heading 6104, HTSUS.  While DD 881895 did classify the garment as
a dress in heading 6104, it incorrectly classified the dress at
the six digit level.  HRL 953907 correctly classified the dress
in subheading 6104.43.2010, HTSUS.  
     Regarding classification of the garment as a dress or
pullover, we noted that if the garment had extended to only mid-
thigh, we may have reached a different conclusion depending in
part on other criteria such as how this garment is marketed and
advertised to the public.   

     At the time we reviewed DD 881895, we had not received the
submitted advertising material.  However, it is our position that
the advertisement fails to prove that the samples are
classifiable as articles similar to nightwear for tariff
purposes.  We note that on the sample page, there are
advertisements for "Ladies' Plus size Oversize Ribbed Tops",
"Ladies Plus Size Knit Leggings or Stirrups", and "Ladies Flannel
Dorm Shirts."  There are no comments in any of the advertisement
pages devoted to women's clothing that indicate a particular item
of apparel is used for specific purposes, such as sleeping. 
Similarly, there is no suggestion that any item is sold in a
particular department, such as the loungewear department.  This
is a general merchandise advertisement that features a scattered
variety of apparel and the general context of the ad format shows
the skimp as part of casual clothing worn during the day.  

     Furthermore, while intimate loungewear is classifiable in
heading 6108, HTSUS, which provides for "[w]omen's or girls'
slips, petticoats, briefs, panties, nightdresses...and
negligees...", the subject garments are not of the class or kind
of garment found in this heading.  The physical characteristics
of these garments render them appropriate for casual wear outside
the home.  Specifically, as discussed in HRL 950937, these
garments have characteristics of casual oversized dresses. 

     Finally, this garment cannot be considered as sleepwear in
heading 6108, HTSUS.  The appearance of this garment suggests
apparel other than sleepwear.  In addition, the term "skimp" has
no traditional or well-defined meaning in the fashion industry. 
The consumer is therefore not directed by the terminology as to
how the garment is intended to be worn.  Thus, as the submitted
advertisement is inconclusive and the appearance of the garments
suggest that they are not sleepwear or intimate loungewear, it is
our position that HRL 953907 correctly classified style SIUN-
5LSP/J/V/B as a dress in subheading 6104.43.2010, HTSUS.  As the
second sample garment is virtually identical to this garment, it
is our position that it is also classified as a dress in
subheading 6104.43.2010, HTSUS.  Therefore,  this garment was
incorrectly classified as a pullover in NYRL 883224 and that
ruling is modified to reflect this classification.  

 HOLDING:

     Styles SIUN-5LSP/J/V/B and FJGL-5LSW/R/B/H are classified in
subheading 6104.43.2010, HTSUS.  The rate of duty is 17% ad
valorem and the textile category code is 636.
     HRL 953907 is affirmed.

     NYRL 883224 is modified.

     The designated textile and apparel categories 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 the importer 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.

     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.  

     In order to ensure uniformity in Customs classification of
this merchandise and eliminate uncertainty, pursuant to section
177.9(d)(1), Customs Regulations (19 CFR 177.9(d)(1), NYRL 883224
is modified to reflect the above classification effective with
the date of this letter.  For purposes of future transaction in
merchandise of this type, NYRL 883224 will not be valid
precedent.  
                                   
                                   Sincerely,



                                   John Durant, Director
                                   Commercial Rulings Division