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HQ 084090


June 12, 1989

CLA-2 CO:R:C:G 084090 CMR 837971

CATEGORY: CLASSIFICATION

TARIFF NO.: 6104.23.00

Mr. Ralph Natale
American Shipping Company
600 Sylvan Avenue
Englewood Cliffs, New Jersey 07632

RE: Classification of a women's top and shorts set

Dear Mr. Natale:

This ruling is in response to your letter of February 28, 1989, requesting reconsideration of NYRL 836290 of February 9, 1989. In that ruling, the merchandise at issue, style 1045, consisting of a pullover and shorts, was classified in the appropriate provisions for outerwear (daywear). Reconsideration is sought based on the claim that style 1045 is nightwear, not daywear.

FACTS:

Style 1045 is a women's ensemble consisting of a loose-fitting short sleeved pullover and matching shorts. The garments are made with 65 percent polyester and 35 percent cotton finely knit fabric. The pullover has a rib knit crew neck, short sleeves, one breast pocket, side vents, and a hemmed bottom. The back panel of the pullover is two inches longer than the front panel. The shorts have an elasticized waist and hemmed bottoms. In the original inquiry the country of origin was indicated to be Hong Kong; now, it is stated to be Indonesia.

The garments were classified as an ensemble in subheading 6104.23.00, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), with the pullover taking the statistical reporting number 36 and the shorts 34. The corresponding textile quota category designations were 639 for the pullover and 648 for the shorts.

In your letter requesting reconsideration, you state that style 1045 should have been described as "a Boxer Pajama Set," and that it "is used exclusively as sleepwear and for no other purposes." You further claim the importer does not sell outerwear garments and only imports sleepwear type articles. Copies of advertisements showing similar merchandise advertised as pajamas were enclosed with your request.

ISSUE:

Was style 1045 properly classified as outerwear in NYRL 836290, or should it be classified 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). There is nothing in the styling or fabric of style 1045 to lead us to believe it is to be used solely as nightwear. For that matter, while it may be worn to bed, style 1045 is typical of knit shorts sets worn by women during the summertime.

We do not find the copies of advertisements you sent to be persuasive. The advertisements show similar merchandise promoted as boxer pajama sets in a soft cotton knit. Two of these sets have insignia crest on the pockets and the other has lace trim. The copy is very poor, but the garments' descriptions indicate that while similar, they are different from style 1045. Nothing in your submission convinces us that style 1045 is designed, manufactured, marketed and used as nightwear.

HOLDING:

Style 1045 was correctly classified in NYRL 836290 of February 9, 1989, as an ensemble in 6104.23.00, HTSUSA.

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

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