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HQ 954299


September 14, 1993

CLA-2 CO:R:C:T 954299 NLP

CATEGORY: CLASSIFICATION

TARIFF NO.: 6104.43.2010

Ms. Susan Kearney
Wal- Mart Stores, Inc.
702 S.W. 8th Street
Bentonville, Arkansas 72716

RE: Oversized women's knit garments; HRL 953907; modification of NYRL 883224; headings 6104, 6108 and 6110; knit dresses; knit pullovers; loungewear and sleepwear

Dear Ms. Kearney:

This is in response to your letter of May 23, 1993, in which you requested a reconsideration of District Ruling Letter (DD) 881895, dated February 1, 1993, and New York Ruling Letter (NYRL) 883224 dated March 23, 1993, which dealt with the classification of women's knit garments. Samples of both garments were submitted for our examination.

FACTS:

The first sample, style SIUN-5LSP/J/V/B, is a women's knit, oversized garment made from 85% polyester and 15% cotton. The interior fabric is napped, while the exterior surface is knit with more than nine stitches per two centimeters measured in the horizontal direction. The garment features long sleeves with rib knit cuffs, a mock turtleneck and a hemmed bottom which extends to the knee. The shoulder seams drop three to four inches beyond the wearer's natural shoulder line. The invoice refers to this garment as a "fleece skimp."

DD 881895 classified this garment in subheading 6104.44.2010, HTSUS, which provides for "[w]omen's or girls' suits, ensembles, suit-type jackets, blazers, dresses...knitted or crocheted: [d]resses: [o]f artificial fibers: [o]ther: [w]omen's. The rate of duty is 17% ad valorem and the textile category code is 636.

The second garment, style FJGL-5LSW/R/B/H, is also a women's knit oversized garment made from 75% polyester, 15% rayon and 10% cotton. The interior fabric is napped and the outer surface is constructed with more than nine stitches per two centimeters measured in the horizontal direction. It has a round rib-knit neck, long sleeves with rib knit cuffs and a hemmed bottom. The invoice also refers to this garment as a "ladies knit skimp."

According to NYRL 883224, the garment extended to the "mid- thigh area." Although the statements as to the length of the sample in each of the subject rulings do not exactly coincide, the two samples currently before us are the same length. When worn by an adult women of average height, both samples extend to the knees. Therefore, we will treat this sample as being knee length.

NYRL 883224 classified this garment in subheading 6110.30.3055, HTSUS, which provides for "[s]weaters, pullovers, sweatshirts, waistcoats (vest) and similar articles, knitted or crocheted: [o]f man-made fibers: [o]ther: [o]ther: [o]ther: [w]omen's or girls'. The rate of duty is 34.2% ad valorem and the textile category code is 639.

It is your position that the subject garments are skimps, nightdresses which are to be worn as loungewear in the evenings. Therefore, you contend that they are neither dresses nor pullovers and they should be classified in subheading 6108.92.0030, HTSUS, which provides for "[w]omen's or girls' slips, petticoats, briefs, panties, nightdresses...and similar articles, knitted or crocheted: [o]ther: of man-made fibers: [o]ther: [w]omen's." The rate of duty is 17% ad valorem and the textile category code is 650.

In support of your position, you state that the garments will be marketed in your sleepwear division and you supplied a copy of your advertisement for the skimps. The advertisement portrays a women with the skimp on curled up on a couch. The text under the picture states "Ladies Fleece Skimps are long sleeved with a mock turtleneck...cotton/polyester..."

ISSUE:

Whether the two garments at issue are classifiable as dresses in subheading 6104.44.2010, HTSUS, as pullovers in subheading 6110.30.3055, HTSUS, or as similar articles in subheading 6108.92.0030, HTSUS?

LAW AND ANALYSIS:

Headquarters Ruling Letter (HRL) 953907, issued to you on July 29, 1993, reviewed DD 881895 and discussed whether sample SIUN-5LSP/J/V/B was classified as a pullover or a dress. HRL 953907 held that the sample garment was classified as a dress in heading 6104, HTSUS. While DD 881895 did classify the garment as a dress in heading 6104, it incorrectly classified the dress at the six digit level. HRL 953907 correctly classified the dress in subheading 6104.43.2010, HTSUS.
Regarding classification of the garment as a dress or pullover, we noted that if the garment had extended to only mid- thigh, we may have reached a different conclusion depending in part on other criteria such as how this garment is marketed and advertised to the public.

At the time we reviewed DD 881895, we had not received the submitted advertising material. However, it is our position that the advertisement fails to prove that the samples are classifiable as articles similar to nightwear for tariff purposes. We note that on the sample page, there are advertisements for "Ladies' Plus size Oversize Ribbed Tops", "Ladies Plus Size Knit Leggings or Stirrups", and "Ladies Flannel Dorm Shirts." There are no comments in any of the advertisement pages devoted to women's clothing that indicate a particular item of apparel is used for specific purposes, such as sleeping. Similarly, there is no suggestion that any item is sold in a particular department, such as the loungewear department. This is a general merchandise advertisement that features a scattered variety of apparel and the general context of the ad format shows the skimp as part of casual clothing worn during the day.

Furthermore, while intimate loungewear is classifiable in heading 6108, HTSUS, which provides for "[w]omen's or girls' slips, petticoats, briefs, panties, nightdresses...and negligees...", the subject garments are not of the class or kind of garment found in this heading. The physical characteristics of these garments render them appropriate for casual wear outside the home. Specifically, as discussed in HRL 950937, these garments have characteristics of casual oversized dresses.

Finally, this garment cannot be considered as sleepwear in heading 6108, HTSUS. The appearance of this garment suggests apparel other than sleepwear. In addition, the term "skimp" has no traditional or well-defined meaning in the fashion industry. The consumer is therefore not directed by the terminology as to how the garment is intended to be worn. Thus, as the submitted advertisement is inconclusive and the appearance of the garments suggest that they are not sleepwear or intimate loungewear, it is our position that HRL 953907 correctly classified style SIUN- 5LSP/J/V/B as a dress in subheading 6104.43.2010, HTSUS. As the second sample garment is virtually identical to this garment, it is our position that it is also classified as a dress in subheading 6104.43.2010, HTSUS. Therefore, this garment was incorrectly classified as a pullover in NYRL 883224 and that ruling is modified to reflect this classification.

HOLDING:

Styles SIUN-5LSP/J/V/B and FJGL-5LSW/R/B/H are classified in subheading 6104.43.2010, HTSUS. The rate of duty is 17% ad valorem and the textile category code is 636. HRL 953907 is affirmed.

NYRL 883224 is modified.

The designated textile and apparel categories may be subdivided into parts. If so, the 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 the importer check, close to the time of shipment, the Status Report on current Import Quotas (Restraint Levels), an internal issuance of the U.S. Customs Service which is updated weekly and is available for inspection at your local Customs office.

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.

In order to ensure uniformity in Customs classification of this merchandise and eliminate uncertainty, pursuant to section 177.9(d)(1), Customs Regulations (19 CFR 177.9(d)(1), NYRL 883224 is modified to reflect the above classification effective with the date of this letter. For purposes of future transaction in merchandise of this type, NYRL 883224 will not be valid precedent.

Sincerely,

John Durant, Director
Commercial Rulings Division

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