HQ 084090: Classification of a women's top and shorts set

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                                    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.















                                       -2-


           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.



















                                       -3-


           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
















































      6cc: Area Director, New York Seaport
      1cc: CITA
      1cc: Legal Reference Section
      1cc: Phil Robins