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HQ 957634




September 13, 1995

CLA-2 R:C:T 957634 CMR

CATEGORY: CLASSIFICATION

TARIFF NO.: 6108.31.0010

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.

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

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

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