HQ 084877: Reconsideration of NYRL 841181 of May 26, 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 084877

                                September 5, 1989


      CLA-2 CO:R:C:G  084877  CMR

      CATEGORY: Classification

      TARIFF NO.: 6108.31.0010

      Ms. Mona Webster
      Target Stores
      33 South Sixth Street
      P.O. Box 1392
      Minneapolis, Minnesota  55440-1392

      RE: Reconsideration of NYRL 841181 of May 26, 1989

      Dear Ms. Webster:

           This ruling is in response to your letter of June 19, 1989,
      requesting reconsideration of NYRL 841181 in which a women's garment,
      style #KS20 was classified as a pullover shirt in subheading
      6110.20.2075, HTSUSA.

      FACTS:

           The garment at issue, style #KS20 is a woman's finely knit
      pullover composed of 60 percent cotton and 40 percent polyester
      fibers.  It features a round, rib knit neck, 3/4-length hemmed
      sleeves, one breast pocket, and a hemmed bottom with side slits.  The
      garment extends from the neck and shoulders to mid-thigh.  It is a
      wide, oversized garment that is designated as "one size fits all."

           Style #KS10 was submitted for comparison purposes and was
      classified in NYRL 823271 of May 20, 1987, as a women's knit dress in
      item 384.8620, Tariff Schedules of the United States Annotated.
      Style #KS10 is a finely knit woman's pullover composed of 65 percent
      polyester and 35 percent cotton fibers.  It features short, hemmed
      sleeves, a hemmed bottom without side slits, a round, capped neckline
      with piping, and an embroidered breast pocket.  It extends from the
      neck and shoulders to below mid-thigh.  It is marked "one size fits
      all."

           New York Customs noted some discrepancies between the style
      #KS10 garment submitted for comparison purposes and the sample viewed
      in connection with NYRL 823271.  Three features are present in the
      sample submitted at this time that were apparently not present in











                                       -2-


      the sample submitted for NYRL 823271.  The current sample has piping
      at the neck, the breast pocket, and embroidery on the pocket.

      ISSUE:

           Was style #KS20 correctly classified as a pullover shirt of
      subheading 6110.20.2075, HTSUSA, in NYRL 841181?

      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" and a "nightshirt" as "a
      nightgown resembling a shirt."  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 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).  The
      garment is designed to be loose-fitting and is constructed of thin
      knit material.  Although it resembles a women's oversized shirt, it
      is apparent from information submitted at our request that the
      garment is being bought and sold as a sleep shirt and will be
      marketed as such.  Therefore, we believe that it should be so
      classified.

      HOLDING:

           The garment at issue, style #KS20, is classifiable as women's
      nightwear in subheading 6108.31.0010, HTSUSA, textile category 351,
      dutiable at 9 percent ad valorem.

           NYRL 841181 of May 26, 1989, classifying style #KS20 as a
      women's pullover shirt in subheading 6110.20.2075, HTSUSA, is hereby
      revoked.  This action is taken in accordance with 19 CFR 177.9(d),
      and will not be applied retroactively.

           We agree that styles KS20 and KS10 are similar garments and
      should be treated as such.  Information submitted at our request
      supports this decision.  Therefore, style #KS10 is also classifiable
      as women's nightwear in subheading 6108.32.0010, HTSUSA, textile
      category 651, dutiable at 17 percent ad valorem.

           NYRL 823271 of May 20, 1987, classifying style #KS10 as a
      women's dress, is hereby revoked.  This action is taken in accordance
      with 19 CFR 177.9(d), and will not be applied retroactively.














                                       -3-


           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 you 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 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.


                                      Sincerely,



                                      John Durant, Director
                                      Commercial Rulings Division






































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