CLA-2 CO:R:C:G 084877 CMR
Ms. Mona Webster
Target Stores
33 South Sixth Street
P.O. Box 1392
Minneapolis, Minnesota 55440-1392
RE: Reconsideration of NYRL 841181 of May 26, 1989
Dear Ms. Webster:
This ruling is in response to your letter of June 19, 1989,
requesting reconsideration of NYRL 841181 in which a women's garment,
style #KS20 was classified as a pullover shirt in subheading
6110.20.2075, HTSUSA.
FACTS:
The garment at issue, style #KS20 is a woman's finely knit
pullover composed of 60 percent cotton and 40 percent polyester
fibers. It features a round, rib knit neck, 3/4-length hemmed
sleeves, one breast pocket, and a hemmed bottom with side slits. The
garment extends from the neck and shoulders to mid-thigh. It is a
wide, oversized garment that is designated as "one size fits all."
Style #KS10 was submitted for comparison purposes and was
classified in NYRL 823271 of May 20, 1987, as a women's knit dress in
item 384.8620, Tariff Schedules of the United States Annotated.
Style #KS10 is a finely knit woman's pullover composed of 65 percent
polyester and 35 percent cotton fibers. It features short, hemmed
sleeves, a hemmed bottom without side slits, a round, capped neckline
with piping, and an embroidered breast pocket. It extends from the
neck and shoulders to below mid-thigh. It is marked "one size fits
all."
New York Customs noted some discrepancies between the style
#KS10 garment submitted for comparison purposes and the sample viewed
in connection with NYRL 823271. Three features are present in the
sample submitted at this time that were apparently not present in
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the sample submitted for NYRL 823271. The current sample has piping
at the neck, the breast pocket, and embroidery on the pocket.
ISSUE:
Was style #KS20 correctly classified as a pullover shirt of
subheading 6110.20.2075, HTSUSA, in NYRL 841181?
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" and a "nightshirt" as "a
nightgown resembling a shirt." 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 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). The
garment is designed to be loose-fitting and is constructed of thin
knit material. Although it resembles a women's oversized shirt, it
is apparent from information submitted at our request that the
garment is being bought and sold as a sleep shirt and will be
marketed as such. Therefore, we believe that it should be so
classified.
HOLDING:
The garment at issue, style #KS20, is classifiable as women's
nightwear in subheading 6108.31.0010, HTSUSA, textile category 351,
dutiable at 9 percent ad valorem.
NYRL 841181 of May 26, 1989, classifying style #KS20 as a
women's pullover shirt in subheading 6110.20.2075, HTSUSA, is hereby
revoked. This action is taken in accordance with 19 CFR 177.9(d),
and will not be applied retroactively.
We agree that styles KS20 and KS10 are similar garments and
should be treated as such. Information submitted at our request
supports this decision. Therefore, style #KS10 is also classifiable
as women's nightwear in subheading 6108.32.0010, HTSUSA, textile
category 651, dutiable at 17 percent ad valorem.
NYRL 823271 of May 20, 1987, classifying style #KS10 as a
women's dress, is hereby revoked. This action is taken in accordance
with 19 CFR 177.9(d), and will not be applied retroactively.
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The designated textile and apparel category 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 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.
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