HQ 083108: Application for Further Review of Protest No. 2704-8- 001692 of April 8, 1988, Your File No. PRO-1-LA:CC of May 25, 1988

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 083108
                                     March 28, 1989


             CLA-2 CO:R:C:G  083108  SM

             CATEGORY:  Classification

             TARIFF NO.:  384.9440

             District Director of Customs
             U.S. Customs Service
             300 South Ferry Street
             Terminal Island
             San Pedro, CA  90731

             RE:   Application for Further Review of Protest No. 2704-8-
                   001692 of April 8, 1988, Your File No. PRO-1-LA:CC of
                   May 25, 1988

             Dear Sir:

                   Dayton Hudson Department Store Company protests your
             demand for redelivery, dated March 9, 1988,  of merchandise
             covered by entries 110-0447181-6 and 110-0447180-8 of January
             21, 1988.

             FACTS:

                   The protestant describes the mechandise as 792 sets of
             women's pajamas, Style 5001, of 100 percent polyester
             charmeuse, manufactured in South Korea.  Each pair consists of
             boxer-style pull-on bottoms with slits on the sides of the
             flared legs and a notched-collared, short-sleeved top with a
             full-front four-button opening, slits on the sides, and two
             patch pockets.  Color photographs of the merchandise were sub-
             mitted to this office.

                   You determined that the merchandise was classifiable
             under items 384.9115 and 384.9171, TSUSA, as blouses and
             shorts, respectively, and you required visas in categories 641
             and 648.  The protestant claims that the merchandise is clas-
             sifiable under item 384.9440, TSUSA, as pajamas, and that the
             presented visa for category 651 was proper.

                   The protestant states that the physical characteristics
             of the garments themselves indicate that they are pajamas:
             flimsy, lightweight fabric, satiny finish common in sleepwear,
             very short, unlined bottoms with flared legs, no pockets in
             the bottoms, and colors usual for sleepwear.  The protestant
             also claims that that the merchandise was purchased as sleep-
             wear by the sleepwear buyer and has been sold as sleepwear.












                                           -2-


             ISSUE:

                   Is the merchandise properly classified as blouses and
             shorts or as pajamas?

             LAW AND ANALYSIS:

                   Pajamas are sleepwear, i.e, garments worn to bed.
             Textile Category Guidelines, C.I.E. 6/87; T.D. 87-118.  This
             position is consistent with the judgment in Mast Industries v.
             United States, 9 CIT 549 (1985), aff'd, 786 F. 2d 1144 (Fed.
             Cir. 1986), that nightclothes are garments worn to bed, and
             that the garment in question, found to be designed, manufac-
             tured, marketed, and used as nightwear, was so classifiable.

                   In determining whether merchandise is classifiable as
             pajamas and other nightwear, Customs will consider the sample
             itself and any information as to how it is sold.  No advertis-
             ing materials are presented in support of the protest; how-
             ever, the samples themselves are strongly persuasive.  Fur-
             ther, similar styles have been classified as pajamas.  File
             080967 of March 4, 1988.

             HOLDING:

                   Style 5001 is classifiable as pajamas as claimed. You
             should allow the protest in full.  A copy of this decision
             should be sent to the protestant along with your Form 19
             Notice of Action.

                                        Sincerely,



                                        John Durant, Director
                                        Commercial Rulings Division