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HQ 084869


August 31, 1989

CLA-2 CO:R:C:G 084869 HP

CATEGORY: CLASSIFICATION

TARIFF NO.: 6108.91.0010

Mr. Michael O'Neill
O'Neill & Whitaker, Inc.
1809 Baltimore Ave.
Kansas City, MO 64108

RE: Classification of a woman's knit pullover

Dear Mr. O'Neill:

In a letter dated April 24, 1989 (NYRL 839611), the Area Director, New York Seaport, issued you a ruling letter with respect to tariff classification of a ladies' knit shirt, produced in Hong Kong, and described below. In the ruling letter, the shirt was classified under the provisions for sweaters, pullovers, etc., knitted, of cotton, subheading 6110.10.2075, Harmonized Tariff Schedule of the United States Annotated (HTSUSA).

FACTS:

The merchandise at issue consists of a women's 100 percent cotton oversized pullover shirt, Style #200. The fabric of the garment contains less than 10 stitches per linear centimeter. The garment has long sleeves and would appear to extend to approximately mid-thigh. Additional features include a two button placket directly below the neck area, a hemmed bottom and hemmed sleeves. A sleeping animal clutching a teddy bear adorns the front of the garment, along with the words "CLEMZZZON UNIVERZZZITY."

In support of your request for reconsideration, you have stated, and we have no cause to doubt, that the intended and primary use of the garment is as sleeping apparel. You note that over 70 percent of your sales of this style are to the college bookstore market, and have forwarded to our New York office competitor's advertisements in college bookstore catalogs marketing similar items as sleeping apparel. You also enclosed various inventory reports and customer orders supporting this view.

ISSUE:

Is the garment considered sleeping apparel under HTSUSA?

LAW AND ANALYSIS:

Heading 6108, HTSUSA, provides for, inter alia, women's nightdresses, pajamas, and similar articles. The Guidelines for the Reporting of Imported Products in Various Textile and Apparel Categories, CIE 13/88 (Nov. 23, 1988), at 24, describes "nightwear" as meaning sleepwear, including "various articles worn for sleeping, such as nightgowns [a.k.a. nightdresses], night-shirts, `waltz gowns,' etc." Webster's II New Riverside University Dictionary (1984) clarifies this description by defining "nightshirts" as "[a] long shirt worn in bed." Emphasis added. Accordingly, if the instant merchandise is a long shirt designed to be worn in bed, as opposed to being designed as outerwear, it will be classifiable as a woman's nightdress.

The instant garment is an oversized, nonbinding, pullover that could be worn either as outerwear or as nightwear. As we stated above, the front of the garment is adorned with a sleeping animal clutching a teddy bear. Such members of the Ursidae family are normally associated with nocturnal activities.

You have asserted that goods of this type are principally used as sleepwear in the United States. Further, you provided proof, in the form of invoices, inventory descriptions, etc., that the instant merchandise is so used. Although evidence of use as nightwear is not dispositive of your claim, illustration of such a role, in addition to the design of the garment as described in the preceding paragraph, support your contention that the knit pullovers should be reclassified as nightdresses.

HOLDING:

As a result of the foregoing, the instant merchandise is classified under subheading 6108.31.0010, HTSUSA, textile category 351, as women's or girls' slips, petticoats, briefs, panties, nightdresses, pajamas, negligees, bathrobes, dressing gowns and similar articles, knitted or crocheted, nightdresses and pajamas, of cotton, women's. The applicable rate of duty is 9 percent ad valorem.

The designated textile and apparel category may be subdivided into parts. If so, 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 that 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.

Pursuant to section 177.9, Customs Regulations (19 C.F.R. 177.9), the ruling letter of April 24, 1989 is modified in conformity with the foregoing.

Sincerely,

John Durant, Director
Commercial Rulings Division

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