CLA-2 CO:R:C:T 956506 CMR
Mr. William Ortiz
S.J. Stile Associates Ltd.
153-66 Rockaway Boulevard
Jamaica, New York 11434
RE: Classification of certain women's woven flannel boxers;
sleepwear v. outerwear; 6208, HTSUSA, v. 6204, HTSUSA
Dear Mr. Ortiz:
This is in response to your letter of April 7, 1994, on
behalf of Stafford Inc., requesting the classification of certain
women's woven flannel boxers, style 2139, imported with a
matching flannel carrying bag. The garment will be manufactured
in China and imported through JFK Airport. A sample garment and
carrying bag were received with your request.
FACTS:
You describe style 2139 as a ladies 100 percent cotton boxer
short. The garment is made of 100 percent cotton woven flannel
fabric. It features an elasticized waist with the elastic
exposed on the interior of the garment, a fake fly and typical
boxer silhouette. The waist measurement of the relaxed waist is
about 29 inches. The garment comes with a matching flannel bag
with a drawstring closure. The bag features a large sewn-on
label/patch which displays a drawing of its contents (boxers),
the size of the garment (in this case, large), the word
"FLANNELS" at the top, and the following description at the
bottom: "CONTENTS: One 100 percent cotton flannel boxers",
"NIGHTSHIRT SAME PLAID AS BAG".
Customs requested additional information on the boxers at
issue and received copies of labels, sales order forms and a
purchase contract. One of the label copies was similar to that
which appears on the submitted flannel bag sample except that the
label copy states: "BOXERS SAME PLAID AS BAG", "One 100 percent
cotton flannel boxer". In view of this, we suspect the submitted
sample bag may have a printing error.
-2-
ISSUE:
Are the boxers at issue classifiable as men's or women's
boxers?
Are the submitted boxers classifiable as sleepwear of
heading 6208, HTSUSA, or as outerwear of heading 6204, HTSUSA?
How is the carrying bag classified, i.e., separately or with
the boxers as composite goods?
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]."
Note 8, Chapter 62, prescribes how garments are to be
classified by gender. Note 8 provides:
Garments of this chapter designed for left over right
closure at the front shall be regarded as men's or boys'
garments, and those designed for right over left closure at
the front as women's or girls' garments. These provisions
do not apply where the cut of the garment clearly indicates
that it is designed for one or other of the sexes.
Garments which cannot be identified as either men's or boys'
garments or as women's or girls' garments are to be
classified in the headings covering women's or girls'
garments.
In this case, style 2139 has no closure. However, we
believe that the cut of the garment is indicative of a women's
garment as the boxers flare out somewhat from the waist as
opposed to being straight on the sides. In addition, the
presence of a fake fly is a feature more likely to be on a
women's garment as opposed to a man's garment. Therefore, we
accept that the submitted garment is a women's garment.
The issue of whether the submitted boxers are classifiable
as sleepwear is more difficult to resolve. In determining the
classification of garments submitted to be sleepwear, Customs
considers the factors discussed in two decisions of the Court of
International Trade which are often cited when discussing
sleepwear. In Mast Industries, Inc. v. United States, 9 CIT 549,
552 (1985), aff'd 786 F.2d 1144 (CAFC, April 1, 1986) the Court
of International Trade dealt with the classification of a garment -3-
claimed to be sleepwear. The court cited several lexicographic
sources, among them Webster's Third New International Dictionary
which defined "nightclothes" as "garments to be worn to bed." In
Mast, the court determined that the garment at issue therein was
designed, manufactured, and used as nightwear and therefore was
classifiable as nightwear. Similarly, in St. Eve International,
Inc. v. United States, 11 CIT 224 (1987), the court ruled the
garments at issue therein were manufactured, marketed and
advertised as nightwear and were chiefly used as nightwear.
In contrast, the Court of International Trade disregarded
claims regarding marketing and advertising in Regaliti, Inc. v.
United States, Slip Op. 92-80, which dealt with the
classification of garments known as leggings which were
classified as pants by Customs and claimed by the importer to be
classifiable as tights. In upholding Customs classification of
the goods as pants, the court stated:
Plaintiff's fashion merchandising experts testified
that these items were "tights," and plaintiff advertises
them as "tights." * * * .
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."
In past rulings, Customs has stated that the crucial factor
in the classification of a garment is the garment itself. As the
court pointed out in Mast, "the merchandise itself may be strong
evidence of use." Mast at 552, citing United States v. Bruce
Duncan Co., 50 CCPA 43, 46, C.A.D. 817 (1963). However, when
presented with a garment which is somewhat ambiguous and not
clearly recognizable as sleepwear or underwear or outerwear,
Customs will consider other factors such as environment of sale,
advertising and marketing, recognition in the trade of virtually
identical merchandise, and documentation incidental to the
purchase and sale of the merchandise, such as purchase orders,
invoices, and other internal documentation. It should be noted
that Customs considers these factors in totality and no single
factor is determinative of classification as each of these
factors viewed alone may be flawed. For instance, Customs
recognizes that internal documentation and descriptions on
invoices may be self-serving as was noted by the court in
Regaliti. Slip-Op. 92-80.
With these points in mind, Customs has reviewed the
submitted classification request and we are not persuaded that
the submitted garment is classifiable as sleepwear. In this
case, the garment is not clearly sleepwear; it has the appearance
of shorts. Although the flannel fabric, the label--"DOZE", and
the exposed elastic waistband are features which may suggest -4-
sleepwear, these same features may be found in loungewear.
Flannel is not a fabric used exclusively for sleepwear, and the
company label does not identify the product, only the brand name.
This office requested further information regarding the
advertising and marketing of the subject garment and did receive
copies of purchase orders. The information supplied to us
indicates the boxer short and matching bag are marketed as part
of a line with sleepwear garments (e.g., nightshirts in a bag) to
women's specialty lingerie stores and intimate apparel
departments of larger stores. This information, however, is
insufficient to indicate the boxers themselves are sleepwear and
principally used as such. Customs has long acknowledged that
intimate apparel/sleepwear departments often sell a variety of
merchandise besides sleepwear and intimate apparel, including
garments intended to be worn as loungewear or other outerwear.
See, HRL 955341 of May 12, 1994 and rulings cited therein; HRL
952105 of July 1992; HRL 085672 of October 29, 1989; and HRL
955088 of December 14, 1993.
It is our view that the subject boxer shorts belong to a
class of garments known as loungewear, i.e., garments designed
for comfortable wear in and around the home or as ultra-casual
streetwear. We view the garment as a multi-purpose garment
rather than a garment designed and used principally for wear to
bed. As loungewear, the garment is classifiable as women's
shorts.
The shorts packaged inside a matching flannel bag and the
shorts and bag are sold together at retail. In HRL 955787 of
April 26, 1994, Customs classified a pair of men's flannel boxers
sold inside a matching carrying bag. In that ruling, Customs
classified the carrying bag and shorts as a composite good. We
stated therein:
In HRL 087280, dated July 16, 1990 we addressed the
tariff classification of a carrying bag imported with a
poncho. The carrying bag was not specially shaped or fitted
to hold its contents and was suitable for repetitive use.
We concluded that the poncho and the bag constituted a
composite article pursuant to General Rule of Interpretation
3(b), with the poncho imparting its essential character.
Similarly, in HRL 086343, dated July 13, 1990, we classified
a carrying bag sold with a windbreaker as a composite
article with the essential character imparted by the
garment. Recently, we classified a textile drawstring bag
imported with blocks as a composite article and concluded
that the blocks lent the essential character to the unit.
The instant carrying bag is sold as a unit with the boxer
shorts. It is not specially shaped or fitted to hold its
contents and is suitable for repetitive use. Based upon the -5-
foregoing precedent the carrying bag and shorts shall be
classified as a composite article. The shorts lend the
essential character to the unit. Accordingly, the carrying
bag shall be classified with the shorts.
As this case is virtually identical to the situation in HRL
955787, i.e., shorts in a bag, the goods at issue here are
classified as composite goods and the shorts impart the essential
character.
HOLDING:
Style 2139, the women's boxer shorts, and the matching
flannel bag, are classified as composite goods. The goods are
classified according to the classification for the boxer shorts.
The women's cotton boxer shorts are classified as women's woven
cotton shorts in subheading 6204.62.4055, HTSUSA, textile
category 348, dutiable at 17.7 percent ad valorem.
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