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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?

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

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