CLA-2 R:C:T 958009 CMR
Mr. William Ortiz
S.J. Stile Associates Ltd.
153-66 Rockaway Boulevard
Jamaica, New York 11434
RE: Modification of Headquarters Ruling Letter (HRL) 956506 of
September 27, 1994; classification of women's woven flannel
boxers
Dear Mr. Ortiz:
On September 27, 1994, Customs issued a ruling to you, HRL
956506, which you requested on behalf of Stafford Inc.,
classifying a pair of women's woven flannel boxers as shorts of
subheading 6204.62.4055, Harmonized Tariff Schedule of the United
States Annotated (HTSUSA). As the result of a later request for
a ruling on the identical garment by another party, Customs has
reviewed the decision in HRL 956506 and found the outcome in
error.
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 modification of
HRL 956506 was published June 21, 1995, in the Customs Bulletin,
Volume 29, Number 25.
FACTS:
The garment at issue in HRL 956506, style 2139, is described
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
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 -2-
description at the bottom: "CONTENTS: One 100 percent cotton
flannel boxers", "NIGHTSHIRT SAME PLAID AS BAG".
ISSUE:
Is style 2139 properly classified as women's shorts or
sleepwear?
LAW AND ANALYSIS:
In HRL 957615 of May 24, 1995, Customs classified an
identical garment as sleepwear similar to nightdresses and
pajamas. In that ruling, the requester indicated the garment
would be sold in its intimate apparel department where the
customer could purchase the boxer separately or put it together
with the matching nightshirt in a bag to make a complete set of
pajamas.
In that case, additional information was submitted
indicating specifically how the garment would be displayed and
sold in the intimate apparel department of the store. In
addition, the garment had a sewn in label indicating it was a
sleepwear garment. In Mast, 9 CIT 549, at 551, the court pointed
out that the expert witnesses in that case agreed "that most
consumers purchase and use a garment in the manner in which it is
marketed." The sewn in label was a factor considered in
determining how the garment was marketed and likely to be used by
purchasers, though it was not determinative in and of itself.
Based upon the additional information regarding the specific
marketing of the garment at the retail level and taking into
consideration all of the information presented, Customs believed
the garment was being held out to consumers as a sleepwear
garment which was part of a sleepwear line including nightshirts
in a bag and as such would principally be used as sleepwear.
The garment was identical to the garment in HRL 956506. The
arguments put forth in both cases were similar, however in HRL
957615 the information provided included information from the
retailer stating specifically the manner in which it would
display and sell the good. This additional information led to a
decision that the garment was properly classified as women's
sleepwear.
Based upon the decision in HRL 957615 and in the interest of
uniformity, Customs is modifying HRL 956506. The garment at
issue therein, style 2139, is properly classified as a sleepwear
garment similar to pajamas and nightdresses in subheading
6208.91.3010, HTSUSA, textile category 352, dutiable at 11.8
percent ad valorem.
-3-
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 sleepwear
garments similar to pajamas and nightdresses in subheading
6208.91.3010, HTSUSA, textile category 352, dutiable at 11.8
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