CLA-2 CO:R:C:T 951754 SK
Stephen M. Zelman
Attorney at Law
100 East 42nd Street, 22nd floor
New York, N.Y. 10017
RE: Classification of 100% cotton flannel women's boxer-style
shorts; outerwear v. sleepwear; multiple-use garment; importer
must provide evidence that article is designed, marketed and sold
as claimed; availability in intimate apparel department not
conclusive; 6204, HTSUSA; Mast Industries, Inc. v. United States;
Hampco Apparel, Inc. v. United States; St. Eve International,
Inc. v. United States; HRL 082118 (5/20/88).
Dear Mr. Zelman:
This is in response to your inquiry of May 4, 1992, on
behalf of Craftex Creations, Inc., requesting the tariff
classification and textile category applicable to a garment
described as a women's boxer-style short. A sample was submitted
to this office for examination.
FACTS:
The submitted sample, marked style 12061D, is a pair of
women's boxer-style shorts constructed from woven 100% cotton
flannel yarn-dyed plaid fabric. The pull-on shorts feature a
fully elasticized waist with a turned waistband, fly front
opening secured by a single visible button, single center back
seam and hemmed mid-thigh length legs. The garment's relaxed
waist measures approximately 22 inches. The garment's leg
opening measures approximately 27.5 inches in circumference.
Your submission refers to the garment as "boxer-style
sleepwear". You claim that District Decision (DD-San Francisco)
873141, dated April 20, 1992, prohibits importation of the
merchandise because your client cannot obtain the textile quota
category required by the ruling. DD 873141 classified the
subject merchandise as women's or girls' cotton shorts under
subheading 6204.62.4055, HTSUSA, with a textile category of 348.
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ISSUE:
Whether the women's flannel boxer-style shorts are properly
classifiable as sleepwear under heading 6208, Harmonized Tariff
Schedule of the United States Annotated (HTSUSA), or as women's
shorts under heading 6204, HTSUSA?
LAW AND ANALYSIS:
Classification of merchandise under the HTSUSA is governed
by the General Rules of Interpretation (GRI's) taken in order.
GRI 1 provides that classification shall be in accordance with
the terms of the headings and any relative section or chapter
notes.
The subject merchandise is of a type of garment that is
capable of being used for more than one purpose. Use of this
article both as shorts and as sleepwear is feasible and it is
this duality which complicates classification. When confronted
with garments which are claimed to be of a particular class, yet
strongly resemble articles of another class, Customs will first
examine the article itself and its particular design features and
thereafter any other extrinsic evidence pertaining to the
marketing, advertising and sale of the article. Customs will
also consider information regarding what the garment passes for
in the trade and commerce of the United States and what the
expectations of the ultimate purchaser are. See St. Eve
International, Inc. v. United States, Slip. Op. 87-37 (1987).
See also Headquarters Ruling Letter (HRL) 082118, dated May 20,
1988, which sets forth Customs' approach to the classification of
ambiguous articles sold in an ambiguous sales environment.
In the instant case, Customs is asked to classify a women's
woven 100% cotton flannel boxer-style short. Customs has
developed guidelines which aid in distinguishing between
underwear boxer shorts and outerwear boxer shorts. See HRL
087940, dated September 16, 1991. Although the distinction made
in that case was between outerwear and underwear, as opposed to
the instant case where we are to determine whether the garment
is outerwear or sleepwear, the criteria set forth in HRL 087940
nevertheless provides the relevant analysis because neither
sleepwear nor underwear are worn as outerwear and both are
garments to be worn in the privacy of one's own home. Outerwear
may be worn to bed (i.e., t-shirts), but this is a fugitive use
and not a basis for classification. Sleepwear, like underwear,
is not worn as outerwear.
In HRL 087940, Customs deemed the following characteristics
determinative of outerwear:
1. Fabric weight greater than 4.2 ounces per square yard;
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2. An enclosed or turned waistband;
3. Lack of a fly or presence of a lining;
4. A single leg opening greater than the relaxed waist;
5. The presence of belt loops, inner or outer pockets or
pouches;
6. Multiple snaps at the fly opening;
7. The side length of a size medium should not exceed 17 inches.
The subject merchandise possesses two of the above-
enumerated features: the garment has a turned waistband and the
circumference of a single leg opening measures 27.5 inches and is
therefore greater than the waist's circumference which measures
22 inches. No information regarding the fabric weight of this
garment was submitted to this office. The presence of more than
one of these features gives rise to a rebuttable presumption that
a garment is outerwear. As mentioned, additional criteria such
as marketing, advertising, industry treatment of this garment and
other physical attributes of the garment may be considered to
refute this presumption.
In your submission you state that this garment is designed,
manufactured, marketed and used as sleepwear. You cite Mast
Industries, Inc. v. United States, Slip Op. 85-114 (1985) and St.
Eve International, Inc. v. United States, Slip Opinion 87-37
(1987) in support of your claim. No conclusive evidence was
submitted which substantiates this claim. As set forth above,
the design characteristics of this garment create a rebuttable
presumption that the garment is outerwear. With regard to the
marketing and advertising of this particular article, the only
information submitted to this office consisted of a written
statement that a back-to-school catalogue will carry these
articles on the sleepwear page (no photo or advertising copy was
provided) and the store where these items will be sold (Target
Stores) will display the garments in the intimate apparel
section. In a contradictory subsequent statement provided by the
intimate apparel buyer of Target Stores, it was stated that the
shorts will be displayed in the panty and daywear section and
will be marketed for wear underneath skirts and shorts.
Obviously, this is not how sleepwear is worn and there is
discrepancy in the manner in which these garments are advertised
and displayed in the store. In a phone conversation with the
buyer, Customs was also informed that the garments will be sold
on racks which have a photo topper showing a model wearing the
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subject merchandise with a T-shirt and a robe. Therefore, from a
single source we have been told that the garment will be
advertised as sleepwear, yet displayed with panties and daywear,
and have accompanying photos in the underwear section showing the
article worn with outerwear and a robe.
In your June 22, 1992, submission to this office, you have
provided us with sleepwear advertisements from several other
stores. While Customs will take into consideration evidence of
how certain articles are being treated in the industry, the
articles must be the same as those under consideration for there
to be any relevance to the comparison. You submitted a MACY'S ad
which shows polyester "satin boxers" positioned on the same page
with other sleepwear and underwear. You also submitted ads from
VICTORIA'S SECRET and LORD & TAYLOR which show women wearing
shorts and matching top sets described as "boxer pajama sets".
The satin boxers are not similar to the articles at issue because
they are made from a different fabric and the sheerness and
design features of that style may render them unsuitable for use
as outerwear. The "boxer pajama sets" are also different from
the articles at issue in that they are polyester two-piece sets
clearly designed to be worn together and they are unambiguously
marketed as "pajamas". While the ads use the term "boxer" to
describe the sleepwear, this term alone is not absolutely
determinative of classification as either sleepwear or underwear.
The mere fact that the subject merchandise will be
displayed in the intimate apparel department of a large store
that also carries outerwear does not conclusively prove that the
garment is either sleepwear or underwear. It is well established
that intimate apparel departments include merchandise other than
intimate apparel. In fact, virtually any issue of BODY
FOUNDATIONS AND INTIMATE APPAREL, the trade publication for the
intimate apparel business, will demonstrate that intimate apparel
departments market a wide variety of "leisurewear" (i.e., loose,
comfortable clothing worn in or outside the home in a casual
environment). This fact is verified by a statement by the
intimate apparel buyer from Target Stores who acknowledges that
her department carries outerwear sundresses.
Furthermore, Customs notes that while the use of flannel
fabric has traditionally been associated with sleepwear, it is
not exclusively limited for this purpose. Certainly flannel is
acceptable as an outerwear fabric, as is evidenced by its
commonplace use in flannel shirts.
You assert that Craftex' line of clothing is limited to
women's sleepwear, its location is in Manhattan's
nightwear/sleepwear district and that outerwear buyers do not
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visit Craftex' premises. Customs has rejected claims that
imported merchandise should be classified based solely on how a
company characterizes itself, its product line or where it
locates its business. Absent substantive evidence based on
design characteristics, marketing, advertising and manner of sale
to indicate otherwise, we are unwilling to classify these
garments as sleepwear based on the information submitted.
Articles such as these are offered for sale in various
retail environments and, when offered in the intimate apparel
department, are often casually displayed with other leisurewear
and combined with casual upper body garments which are clearly
outerwear. As mentioned supra, Customs will take into
consideration evidence of how these garments are treated in the
fashion industry. We note in particular an advertisement for
boxer shorts found in BODY FOUNDATIONS AND INTIMATE APPAREL
magazine, which reads:
Boxer shorts become a natural for spring/summer lounging
and sleeping. They are comfortable and practical as
well, making the transition from the house to the streets
with ease.
The other advertisement is from a JC PENNEY CATALOGUE and
describes boxers as leisurewear.
We are of the opinion that the submitted sample is a
multiple use garment intended as a comfortable and casual
lounging garb that may be worn inside and outside the home. The
garment has the physical characteristics of outerwear and may be
worn outside. The garment is not sleepwear and we are not
persuaded that any use as sleepwear will exceed all other uses to
which this merchandise may be put.
Heading 6204, HTSUSA, provides for, inter alia, women's
shorts, and the subject merchandise is properly classifiable
here.
HOLDING:
The article at issue is classifiable under subheading
6204.62.4055, HTSUSA, which provides for women's or girls' suits,
ensembles, suit-type jackets, blazers, dresses, skirts, divided
skirts, trousers, bib and brace overalls, breeches and shorts
(other than swimwear): of cotton: other... shorts: women's. The
rate of duty is 17.7% ad valorem and the textile category is
348.
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The designated textile and apparel category may be
subdivided into parts. If so, 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 that your client 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 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, your client should contact its
local Customs office prior to importing the merchandise to
determine the current applicability of any import restraints or
requirements.
Sincerely,
John Durant, Director
Commercial Rulings Division