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HQ 088558


May 23, 1991

CLA-2 CO:R:C:T 088558 PR

CATEGORY: CLASSIFICATION

TARIFF NO.: 6211.42.0050

Mr. Bruce A. Bell
W.N.Proctor Company, Inc.
P.O. Box 192
Boston, MA. 02101

RE: Classification of Two Women's Garments--Sleepwear vs. Shirts; Reconsideration of NYRL 858513

Dear Mr. Bell:

This is in reply to your letter January 14, 1991, on behalf of Eastern Retailers, a Division of Ames Department Stores, concerning the classification of two garments, one of which was the subject of a ruling from our New York office. Our ruling on the matter follows.

FACTS:

Two samples were submitted. Style CPS 4328, which was ruled in NYRL 858513 to be classifiable under the provision for other cotton blouses, shirts, and shirt blouses excluded from Heading 6206, in subheading 6211.42.0050, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), and Style CPS 2706, which was not previously ruled upon.

Style CPS 4328 is a striped woman's oversized garment which extends to well below the knees. It is made from a soft cotton yarn-dyed woven fabric and has the following features: (1) body fabric extensions create very short sleeves, the openings of which are 18 inches in circumference, and which have 1 inch fabric strips overlaid on the edges giving the appearance of cuffs; (2) a full frontal opening secured by eight buttons; (3) a V-shaped neckline; (4) a 1- inch wide soft placket that continues upward and extends completely around the collarless neck opening; (5) a welt pocket in the left breast area; (6) a patch pocket located below the waist on the right front panel; and (7) a curved bottom edge. The back panel of the garment is about 33 inches wide and approximately 41 inches from neck to hem (measured at the midpoint of the panel). The hang tag indicates that the garment only comes in a single (unlabelled) size. Prior to ruling on Style CPS 4328, our New York office requested that the inquirer furnish advertising literature to show how the merchandise is marketed. Upon being submitted a copy of an advertisement showing a somewhat similar (but same length) garment referred to as a dorm or lounge shirt.

Style CPS 2706, although styled somewhat differently, is made of a similar fabric (except that it is woven in a madras pattern) as style CPS 4328 and has the same approximate measurements as style CPS 4328, except that style CPS 2706 is at least 2 inches longer than style 4328. It has the following features (1) 2- inch wide cappings over short extensions of the body fabric create 19 inch (in circumference) sleeve openings; (2) a full frontal opening secured by eight buttons; (3) a rounded bottom edge; (4) an inserted pocket in the left breast area, with a button and tab closure; and (5) a simple collar (with no interlining). A hang tag on the garment indicates that it also only comes in one size.

ISSUE:

The issue presented is whether the submitted samples are classifiable under a heading which provides for nightwear, dressing gowns, and similar articles, or under a heading for other garments, including certain blouses and shirts.

LAW AND ANALYSIS:

Imported goods are classifiable according to the General Rules of Interpretation (GRI's) of the Harmonized Tariff Schedule of the United States (HTSUSA). In this instance, it appears that only GRI 1 governs the classification of the instant merchandise. GRI 1 provides that for legal purposes, classification shall be determined according to the terms of the headings in the tariff and according to any pertinent section or chapter notes.

Heading 6208 provides for women's or girls' nightdresses, pajamas, negligees, bathrobes, dressing gowns, and similar articles. Heading 6211, under which style 4328 was classified, provides for "other garments."

In St. Eve International, Inc. v. United States, 11 CIT 224 (1987), somewhat similar merchandise was held by the court to be classifiable as nightwear. The court cited evidence that the sheerness of the fabric made the garments before it unsuitable for wear in public, that those garments were designed, manufactured and advertised as sleepwear, and that those garments were sold mainly in sleepwear departments of major retail stores thoughout the country. The court held that on the basis of the evidence, the importer had established the chief use (the use which exceeded all other uses) of the garments in question was as sleepwear.

Accordingly, when Customs is presented with situations in which imported garments claimed to be sleepwear are capable of multiple uses, we will look at the evidence presented by the importer to support a sleepwear classification. In this instance, no evidence has been submitted to show that the merchandise was designed and manufactured as sleepwear, or that the these garments would be merchandised as sleepwear.

Our commodity specialist has advised that the subject garments are of the type that are popular for wear with slacks, stretch pants, and stirrup pants. In the absence of any evidence to establish that the predominant use of the instant garments is as sleepwear, or even that they are merchandised as sleepwear, these garments are not classifiable under Heading 6208.

HOLDING:

The sample garments are classifiable under the provision for other women's cotton garments, in subheading 6211.42.0050, HTSUSA, with duty at the column one rate of 8.6 percent ad valorem. The textile and apparel category applicable to this merchandise is 341. NYRL 858513 is affirmed.

Sincerely,

John Durant, Director

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