Application for Further Review of Protest No. 2704-8- 001692 of April 8, 1988, Your File No. PRO-1-LA:CC of May 25, 1988

HQ 083108 March 28, 1989 CLA-2 CO:R:C:G 083108 SM CATEGORY: Classification TARIFF NO.: 384.9440 District Director of Customs U.S. Customs Service 300 South Ferry Street Terminal Island San Pedro, CA 90731 RE: Application for Further Review of Protest No. 2704-8- 001692 of April 8, 1988, Your File No. PRO-1-LA:CC of May 25, 1988 Dear Sir: Dayton Hudson Department Store Company protests your demand for redelivery, dated March 9, 1988, of merchandise covered by entries 110-0447181-6 and 110-0447180-8 of January 21, 1988. FACTS: The protestant describes the mechandise as 792 sets of women's pajamas, Style 5001, of 100 percent polyester charmeuse, manufactured in South Korea. Each pair consists of boxer-style pull-on bottoms with slits on the sides of the flared legs and a notched-collared, short-sleeved top with a full-front four-button opening, slits on the sides, and two patch pockets. Color photographs of the merchandise were sub- mitted to this office. You determined that the merchandise was classifiable under items 384.9115 and 384.9171, TSUSA, as blouses and shorts, respectively, and you required visas in categories 641 and 648. The protestant claims that the merchandise is clas- sifiable under item 384.9440, TSUSA, as pajamas, and that the presented visa for category 651 was proper. The protestant states that the physical characteristics of the garments themselves indicate that they are pajamas: flimsy, lightweight fabric, satiny finish common in sleepwear, very short, unlined bottoms with flared legs, no pockets in the bottoms, and colors usual for sleepwear. The protestant also claims that that the merchandise was purchased as sleep- wear by the sleepwear buyer and has been sold as sleepwear. -2- ISSUE: Is the merchandise properly classified as blouses and shorts or as pajamas? LAW AND ANALYSIS: Pajamas are sleepwear, i.e, garments worn to bed. Textile Category Guidelines, C.I.E. 6/87; T.D. 87-118. This position is consistent with the judgment in Mast Industries v. United States, 9 CIT 549 (1985), aff'd, 786 F. 2d 1144 (Fed. Cir. 1986), that nightclothes are garments worn to bed, and that the garment in question, found to be designed, manufac- tured, marketed, and used as nightwear, was so classifiable. In determining whether merchandise is classifiable as pajamas and other nightwear, Customs will consider the sample itself and any information as to how it is sold. No advertis- ing materials are presented in support of the protest; how- ever, the samples themselves are strongly persuasive. Fur- ther, similar styles have been classified as pajamas. File 080967 of March 4, 1988. HOLDING: Style 5001 is classifiable as pajamas as claimed. You should allow the protest in full. A copy of this decision should be sent to the protestant along with your Form 19 Notice of Action. Sincerely, John Durant, Director Commercial Rulings Division