CLA-2 CO:R:C:G 079931 JLJ
Ms. Hillary Pugh
Variety Imports, Inc.
2600 71st Street
North Berger, New Jersey 07047
RE: Tariff classification of a ladies' knit pullover garment
Dear Ms. Pugh:
You requested a reconsideration of a tariff classification
and category for a women's garment made in Malaysia. You
submitted a sample with your request.
FACTS:
The submitted sample, style number 1043, is a ladies' knit
pullover garment covered by New York Seaport entry number 133-
1652521-4, dated November 5, 1986. The garment features a capped
neckline, capped short sleeves, and a capped hemline. It extends
from the shoulders to the thighs. The garment has a frontal
opening, secured by means of five buttons reaching from the neck
to the waist. It is a T-shirt type garment, except for its
length and its partial frontal opening. It is made of 65 percent
polyester and 35 percent cotton. Its fabric has more than 12
wales per inch. It is not ornamented for tariff purposes.
A Notice of Redelivery, Customs Form (CF) 4647, was issued
for this entry on January 14, 1987, because the garment was held
to be a shirt classified under the tariff provision for other
women's, girls', or infants' wearing apparel, not ornamented, of
man-made fibers, knit, blouses, body suits and body shirts,
shirts (other than sweatshirts) and sweaters, shirts, other,
women's, in item 384.8045, Tariff Schedules of the United States
Annotated (TSUSA), requiring a visa for textile category 639.
You claim that the merchandise is nightwear classified under
the provision for other women's, girls', or infants' wearing
apparel, not ornamented, of man-made fibers, knit, other, pajamas
-2-
and other nightwear, other, in item 384.8634, TSUSA, requiring a
visa for textile category 651. The merchandise was originally
classified under this provision.
Furthermore, you state that you obtained oral tariff
classification advice from the import specialist holding that the
garment was nightwear classified in item 384.8634, TSUSA,
requiring a visa for category 657, prior to importation.
The instant entry was liquidated under the provision for
shirts in item 384.8045, TSUSA, on October 30, 1987.
ISSUE:
Is the instant garment classified as a shirt in item
384.8045, TSUSA, or as nightwear in item 384.8634, TSUSA?
LAW AND ANALYSIS:
The instant sample belongs to a class or kind of clothing
which is multipurpose, capable of being worn on various
occasions, including outdoors for casual social purposes as an
oversized "big shirt". It provides the wearer with adequate
coverage to be modestly dressed while appearing in public.
The sample is the type of garment commonly worn with jeans,
knit pants or knit tights. It is not clearly identifiable as a
garment used exclusively for sleeping, nor does it possess any
distinguishing features which would dedicate it solely for use in
bed.
The Court of International Trade, in Mast Industries v.
United States, 9 CIT 549 (1985), aff'd 786 F.2d 1144 (1986),
noted the definition of nightclothes as "garments to be worn to
bed." Further, the Textile Category Guidelines, C.I.E. 6/87,
reflect the many past decisions in which Customs has classified
as nightwear those garments "worn for sleeping". The instant
garment is worn as leisurewear, indoors and outdoors. Garments
worn on the street are not classifiable under the statistical
breakouts for pajamas and other nightwear.
HOLDING:
The instant garment is a shirt classified in item 384.8045,
TSUSA, requiring a visa in textile category 639.
For future reference, please note that oral classification
advice is not binding upon the Customs Service. In order to get
a binding tariff classification ruling, you should submit a
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written request and a sample of the merchandise to the United
States Customs Service, 6 World Trade Center, New York, New York,
10048-0945.
Please note further that a CF 4647 is final unless protested
within 90 days. The statute covering protests, 19 U.S.C.A.
1514(a) (1980 and Supp. 1987), provides that "decisions of the
appropriate Customs officer, including the legality of all orders
and findings entering into the same, as to--...(4) the exclusion
of merchandise from entry or delivery or a demand for redelivery
to Customs custody under any provision of the Customs
laws...shall be final and conclusive upon all persons (including
the United States and any officer thereof) unless a protest is
filed in accordance with this section." Section 1514(c)(2)(B)
requires that the protest be filed within 90 days after the date
of the decision; in this case, that is the date of the notice of
redelivery.
Sincerely,
John Durant, Director
Commercial Rulings Division
1cc: CITA
1cc: John Durant
6cc: A.D. N.Y. Seaport (NIS-359-82)
JLJohnson:tj:typed 06/01/88
rewritten 10/05/88