HQ 079931: Tariff classification of a ladies' knit pullover garment

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 079931

                                  December 1, 1988



          CLA-2 CO:R:C:G 079931 JLJ

          CATEGORY: Classification

          TARIFF NO.: 384.80

          Ms. Hillary Pugh
          Variety Imports, Inc.
          2600 71st Street
          North Berger, New Jersey 07047

          RE: Tariff classification of a ladies' knit pullover garment

          Dear Ms. Pugh:

               You requested a reconsideration of a tariff classification
          and category for a women's garment made in Malaysia.  You
          submitted a sample with your request.

          FACTS:

               The submitted sample, style number 1043, is a ladies' knit
          pullover garment covered by New York Seaport entry number 133-
          1652521-4, dated November 5, 1986.  The garment features a capped
          neckline, capped short sleeves, and a capped hemline.  It extends
          from the shoulders to the thighs.  The garment has a frontal
          opening, secured by means of five buttons reaching from the neck
          to the waist.  It is a T-shirt type garment, except for its
          length and its partial frontal opening.  It is made of 65 percent
          polyester and 35 percent cotton.  Its fabric has more than 12
          wales per inch.  It is not ornamented for tariff purposes.

               A Notice of Redelivery, Customs Form (CF) 4647, was issued
          for this entry on January 14, 1987, because the garment was held
          to be a shirt classified under the tariff provision for other
          women's, girls', or infants' wearing apparel, not ornamented, of
          man-made fibers, knit, blouses, body suits and body shirts,
          shirts (other than sweatshirts) and sweaters, shirts, other,
          women's, in item 384.8045, Tariff Schedules of the United States
          Annotated (TSUSA), requiring a visa for textile category 639.

               You claim that the merchandise is nightwear classified under
          the provision for other women's, girls', or infants' wearing
          apparel, not ornamented, of man-made fibers, knit, other, pajamas














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          and other nightwear, other, in item 384.8634, TSUSA, requiring a
          visa for textile category 651.  The merchandise was originally
          classified under this provision.

               Furthermore, you state that you obtained oral tariff
          classification advice from the import specialist holding that the
          garment was nightwear classified in item 384.8634, TSUSA,
          requiring a visa for category 657, prior to importation.

               The instant entry was liquidated under the provision for
          shirts in item 384.8045, TSUSA, on October 30, 1987.

          ISSUE:

               Is the instant garment classified as a shirt in item
          384.8045, TSUSA, or as nightwear in item 384.8634, TSUSA?

          LAW AND ANALYSIS:

               The instant sample belongs to a class or kind of clothing
          which is multipurpose, capable of being worn on various
          occasions, including outdoors for casual social purposes as an
          oversized "big shirt".  It provides the wearer with adequate
          coverage to be modestly dressed while appearing in public.

               The sample is the type of garment commonly worn with jeans,
          knit pants or knit tights.  It is not clearly identifiable as a
          garment used exclusively for sleeping, nor does it possess any
          distinguishing features which would dedicate it solely for use in
          bed.

               The Court of International Trade, in Mast Industries v.
          United States, 9 CIT 549 (1985), aff'd 786 F.2d 1144 (1986),
          noted the definition of nightclothes as "garments to be worn to
          bed."  Further, the Textile Category Guidelines, C.I.E. 6/87,
          reflect the many past decisions in which Customs has classified
          as nightwear those garments "worn for sleeping".  The instant
          garment is worn as leisurewear, indoors and outdoors.  Garments
          worn on the street are not classifiable under the statistical
          breakouts for pajamas and other nightwear.

          HOLDING:

               The instant garment is a shirt classified in item 384.8045,
          TSUSA, requiring a visa in textile category 639.

               For future reference, please note that oral classification
          advice is not binding upon the Customs Service.  In order to get
          a binding tariff classification ruling, you should submit a












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          written request and a sample of the merchandise to the United
          States Customs Service, 6 World Trade Center, New York, New York,
          10048-0945.

               Please note further that a CF 4647 is final unless protested
          within 90 days.  The statute covering protests, 19 U.S.C.A.
          1514(a) (1980 and Supp. 1987), provides that "decisions of the
          appropriate Customs officer, including the legality of all orders
          and findings entering into the same, as to--...(4) the exclusion
          of merchandise from entry or delivery or a demand for redelivery
          to Customs custody under any provision of the Customs
          laws...shall be final and conclusive upon all persons (including
          the United States and any officer thereof) unless a protest is
          filed in accordance with this section."  Section 1514(c)(2)(B)
          requires that the protest be filed within 90 days after the date
          of the decision; in this case, that is the date of the notice of
          redelivery.

                                          Sincerely,




                                          John Durant, Director
                                          Commercial Rulings Division




































          1cc: CITA
          1cc: John Durant
          6cc: A.D. N.Y. Seaport (NIS-359-82)
          JLJohnson:tj:typed 06/01/88
                   rewritten 10/05/88