CLA-2 R:C:T 957634 CMR
Diane Weinberg, Esq.
Sandler, Travis & Rosenberg, P.A.
505 Park Avenue
New York, New York 10022-1106
RE: Revocation of District Decision (DD) 801733; Classification
of over-sized T-shirt; pullover v. nightshirt; headings
6110 v. 6108
Dear Ms. Weinberg:
This is in response to your letter of February 17, 1995, on
behalf of Tru-Trade International, Inc., (hereinafter Tru-Trade)
requesting reconsideration of DD 801733 of September 28, 1994,
which classified two women's knit pullover garments as pullovers
of heading 6110, Harmonized Tariff Schedule of the United States
(HTSUSA). You submit that the garments are nightshirts and
submitted two samples with your request. The garments are
imported from El Salvador.
Pursuant to section 625, Tariff Act of 1930 (19 U.S.C.
1625), as amended by section 623 of Title VI (Customs
Modernization) of the North American Free Trade Agreement
Implementation Act, Pub. L. 103-182, 107 Stat. 2057, 2186 (1993)
(hereinafter section 625), notice of the proposed revocation of
DD 801733 was published August 9, 1995, in the Customs Bulletin,
Volume 29, Number 32.
FACTS:
The garments at issue, styles 8816 and 5921, were described
in DD 801733 as:
"* * * women's 100 percent cotton, jersey knit, oversize
shirts with crew neck, short sleeves and a hemmed bottom."
The submitted garments fit this description. They extend to
the knees and have the appearance of oversized T-shirts. The
submitted garments are sized extra large and extra, extra large,
though Customs has been informed the imported garments are sized -2-
1X, 2X, and 3X, and will measure 26, 28 and 30 inches wide,
respectively, at the chest. The submitted garments measure
approximately 36 inches in length and 26 to 28 inches wide at the
chest area. One sample is printed and one sample is not printed.
The garments are imported without the screen printing. In Miami,
the garments are screen printed with licensed Looney Tunes
characters.
The garments are imported by Tru-Trade, screen printed, and
sold to Seabell Sportswear (hereinafter Seabell). Seabell sells
the garments to Kmart for sale in Kmart's juniors' and ladies'
sleepwear department. In support of your argument that the
submitted garments are sleepwear, you have submitted copies of
invoices from the foreign manufacturer to Tru-Trade, a purchase
order from Seabell Sportswear to Tru-Trade, an invoice from Tru-
Trade to Seabell Sportswear, and an amendment to a purchase order
from Kmart to Seabell Sportswear.
ISSUE:
Are the submitted garments classifiable as pullovers of
heading 6110, HTSUS, or as nightshirts of heading 6108, HTSUSA?
LAW AND ANALYSIS:
Classification of goods under the HTSUSA is governed by the
General Rules of Interpretation (GRIs). GRI 1 provides that
"classification shall be determined according to the terms of the
headings and any relative section or chapter notes and, provided
such headings or notes do not otherwise require, according to
[the remaining GRIs taken in order]."
Heading 6108 provides for, among other things, women's
knitted or crocheted nightdresses, pajamas and similar articles.
Heading 6110 provides for, among other things, knitted or
crocheted pullovers. The Explanatory Notes for the Harmonized
Commodity Description and Coding System (EN) do not offer much
assistance in this particular case regarding the headings at
issue.
When determining the classification of a garment, the most
persuasive evidence is the garment itself. The court in Mast
Industries v. United States, 9 CIT 549, 552 (1985), aff'd, 786 F.
2d 1144 (1986), 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). Additionally in Mast, supra, at 552, the
court noted the definition of "nightwear" as "garments to be worn
to bed." The court held that the particular garment at issue
therein was classifiable as nightwear since it was designed,
manufactured, marketed and used as nightwear.
-3-
In regard to the garments at issue, classification must be
based upon the condition of the garments at the time of
importation. This is a basic tenet of tariff classification.
See, Donalds Ltd., Inc. v. United States, 32 Cust. Ct. 310, 314,
C.D. 1619 (1954).
The subject garments are imported without screen printing.
In their condition as imported, they are basically very oversized
T-shirts without any ornamentation. In determining the proper
classification of the garments, Customs must classify the
garments based upon their condition at the time of importation
and not consider the screen printing which occurs after
importation.
Thus, Customs must decide if the garments at issue, at the
time of importation, are garments that are used as sleepwear. In
addition, that use must be the principal use in the United States
of goods of the same class or kind to which the imported garments
belong.
As noted above, the garment itself may be persuasive
evidence as to its proper classification. The oversized T-shirts
are made of a soft, cotton, jersey knit fabric. The garments are
designed for wear by average-size women and teens and not
designed or targeted for sale specifically to larger sized women
or teens. Therefore, it is apparent the garments are designed to
be very loose-fitting. In addition, the garments are mid-knee
length on a medium size mannequin. Knee length is common for
nightshirts.
Although based upon the garments physical characteristics
they would seem quite suitable for use as sleepwear, the physical
characteristics alone in this case are not conclusive.
Therefore, Customs will look at the additional information
submitted to support the claim these garments are sleepwear and
principally used as such.
In support of the claimed classification as sleepwear, you
have submitted invoices and purchase orders from all parties
involved in the transactions starting from the manufacturing of
the subject garments to their purchase by a retailer for sale.
In all the submitted documents, the garments are referred to
either as nightshirts or dorm shirts.
In HRL 950503 of June 19, 1992, Customs stated in regard to
documentary evidence submitted to support a classification claim:
[It] should be noted that Customs recognizes that internal
documentation and descriptions on invoices may be self-
serving and should be considered in totality with other
evidentiary information. Indeed, the Court of International -4-
Trade in ruling on the classification of certain garments
known as "leggings" noted: "The court is not highly
persuaded by plaintiffs invoices or advertising calling the
items `tights.' To avoid pants quota limitations plaintiff
must refer to the items as `tights.'" Regaliti Inc. v.
United States, Slip-Op. 92-80, at 5. Therefore, while
Customs will recognize and consider the descriptions on
internal documents and invoices presented, it will not view
them as determinative of a classification, but merely a
consideration.
While Customs will consider advertising and documentation
such as invoices and purchase orders, we recognize that such
material may be self-serving. Therefore, Customs will consider
submitted documentation, but it is only one factor and not
determinative of the classification of a garment. Customs must
determine the classification based upon the totality of the
evidence and primarily based upon the garment itself.
In HRL 951628 of August 12, 1992, and HRL 953591 of June 3,
1993, Customs classified similar garments which were also known
as "dorm shirts". The garments were described as 100 percent
cotton knit oversized T-shirts, measuring approximately 38 inches
in length and 26 inches across the chest. In HRL 951628 and HRL
953591, the garments were screen printed on the front with either
a heart design or a sheep design. In those rulings, Customs
classified the dorm shirts as women's sleepwear.
In reaching its classification decision in HRL 951628 and
HRL 953591, Customs considered not only the garments and their
suitability for use as sleepwear (the claimed classification),
but also information including advertising material, the
department in which the garments were displayed (the sleepwear
department), a statement from the retail buyer as to the purpose
for which the garments were purchased and how they would be
marketed, and the presence of a hang tag clearly associating the
garments with sleep and bedtime.
The differences between the garments at issue in HRL 951628
and 953591, and the garments at issue here are slight differences
in the measurements of the garments, i.e, the garments in the
earlier rulings were slightly longer; and the garments at issue
here enter without any screen printing, i.e., they are blank at
the time of entry.
The information before us substantiates your claim that from
the time of manufacture until the time of sale, the subject
garments are designed and intended for use as sleepwear. The
physical characteristics of the garments, such as, the soft
cotton jersey knit fabric, the knee length, and oversized chest
widths, make the garments particular suitable for use as -5-
sleepwear. The length of the garments, in particular, make it
unlikely, though not impossible, that the garments would be worn
as outerwear. The Court of International Trade pointed out in
Mast, at 551, "that most consumers purchase and use a garment in
the manner in which it is marketed."
Customs is satisfied from the submitted evidence that the
garments at issue in this case are designed, manufactured, and
marketed as sleepwear. We concede that as most consumers will
use the garment for the purpose for which it is marketed, the
garments at issue will be principally used as nightwear. As
such, the subject garments belong to the class or kind of
garments known as nightwear or sleepwear. Their condition at the
time of importation as blank, that is, without screen printing,
does not alter our view.
HOLDING:
DD 801733 of September 28, 1994 is hereby revoked. The
garments at issue therein, styles 8816 and 5921, are classified
as women's cotton knit sleep shirts in subheading 6108.31.0010,
HTSUSA, textile category 351, dutiable at 9 percent ad valorem.
In accordance with section 625, this ruling will become effective
60 days after its publication in the Customs Bulletin.
Publication of rulings or decisions pursuant to section 625 does
not constitute a change of practice or position in accordance
with section 177.10(c)(1), Customs Regulations (19 CFR
177.10(c)(1)).
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 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.
Sincerely,
John Durant, Director
Commercial Rulings Division