CLA-2 CO:R:C:T 952105 CRS
Stephen M. Zelman, Esq.
845 3rd Avenue
New York, NY 10022
RE: Women's cotton flannel boxer shorts; outerwear; sleepwear;
request for reconsideration; HRL 951754 affirmed.
Dear Mr. Zelman:
This is in reply to your letter of July 1, 1992, on behalf
of your client, Craftex Creations, Inc., in which you requested
reconsideration of Headquarters Ruling Letter (HRL) 951754 dated
June 25, 1992. Our decision follows below.
FACTS:
HRL 951754 concerned the classification of a pair of women's
boxer-style shorts, style 12061D, made from 100 percent woven,
cotton flannel, yarn-dyed fabric. The garment featured a fully
elasticized waist with a turned waistband, fly front opening
secured by a single button, single center back seam and hemmed
mid-thigh length legs. The garment's relaxed waist measured
approximately 22 inches, and its leg opening, approximately 27.5
inches in circumference.
In HRL 951754 the boxer shorts in question were classified
in subheading 6204.62.4055, Harmonized Tariff Schedule of the
United States Annotated (HTSUSA), under the provision for women's
shorts. This ruling was issued in response to your request for
reconsideration of San Francisco District Decision (DD) 873141
dated April 20, 1992, and affirmed that ruling. You maintain,
however, that the style 12061D boxer short at issue is properly
classifiable in heading 6208, HTSUSA.
ISSUE:
The issue presented is whether women's flannel boxer-style
garments were correctly classified as shorts in HRL 951754.
LAW AND ANALYSIS:
Two headings are relevant for the purposes of this ruling:
heading 6204, HTSUSA, which provides, inter alia, for women's or
girls' shorts; and heading 6208, HTSUSA, which provides, inter
alia, for women's or girls' nightdresses, pajamas, negligees,
bathrobes, dressing gowns and similar articles. You dispute HRL
951754's classification of the instant garment as women's shorts
on the grounds "that the ruling is based upon an erroneous
understanding of the facts, is inconsistent with judicial and
administrative precedent, and fails to apply applicable General
and U.S. Rules of Interpretation set forth in the Harmonized
Tariff Schedules (sic) of the United States." Letter of July 1,
1992, at 1.
In your letter of July 1st instant, you state that the facts
indicate that style 12061D is classifiable in heading 6208, viz.,
as a form of nightwear or sleepwear. In support of this you cite
certain advertising material, as well as statements from the vice
president of Craftex Creations, Inc., and a buyer of intimate
apparel for Target Stores, Minneapolis, Minnesota, who is
familiar with the garment at issue. This information as to the
merchandising of the instant boxer-style garment was submitted in
connection with your request for reconsideration of DD 873141.
We have once again reviewed the information concerning the
marketing of your client's merchandise. However, as we stated in
HRL 951754:
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.
The advertisements you submitted describe garments made of fabric
other than cotton flannel, e.g., polyester rayon. In addition,
those advertisements that clearly portray sleepwear show boxer
pajama sets consisting of a top and bottom. These articles are
significantly different from the garment here in question. We
therefore do not regard these advertisements as relevant to the
classification of the instant cotton flannel garment.
Similarly, we do not find the statements made by the buyer
for Target Stores and the vice president of Craftex Creations,
Inc. to be persuasive of your client's position. The manner in
which merchandise is sold is a factor to be considered but is not
determinative of its classification. E.g., United States v.
Ignaz Strauss & Co., Inc., 37 CCPA 32, C.A.D. 415 (1949); Russ
Berrie & Co., Inc. v. United States 417 F.Supp. 1035 (1976);
Borneo Sumatra Trading Co. v. United States, 311 F.Supp. 326
(1970). Although style 12061D may well be displayed and sold in
an intimate apparel department, we are advised by the National
Import Specialist familiar with the trade that, in addition to
underwear and sleepwear, intimate apparel departments include a
variety of other merchandise, such as dresses, rompers,
jumpsuits, oversize shirts and boxer-style shorts.
Nor do we regard HRL 951754 to be inconsistent with judicial
and administrative precedent. As we stated in HRL 951754:
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....
Thus although there was conclusive evidence in Mast and St. Eve,
we do not find that the advertisements and other evidence offered
on behalf of your client support the claim for classification as
nightdresses, pajamas, negligees, bathrobes, dressing gowns and
similar articles of heading 6208. Nor do we find HRL 951754 to
be in conflict with prior rulings issued by this office. Where
Customs has found women's boxer-style shorts to be classifiable
as sleepwear, both the material from which the garment was
constructed, as well as advertising material describing the
article, unambiguously supported classification in heading 6208.
HRL 088192 dated February 20, 1991. Similarly, men's boxer
shorts classified as sleepwear have been so regarded on the basis
of conclusive advertising and/or marketing information, for
example, being sold with matching robes. E.g., HRL 950023 dated
October 31, 1991; HRL 088489 dated April 18, 1991. The decision
to classify men's flannel boxer shorts as non-outerwear garments
has been also based on similar marketing information. E.g., HRL
089907 dated September 27, 1991.
Finally, on the basis of the facts presented, Customs is of
the view that the garment in question has the characteristics of
women's shorts of heading 6204. HRL 951754 at 5. It is
therefore our opinion that the instant garment is classifiable
pursuant to the terms of the headings, i.e., pursuant to General
Rule of Interpretation (GRI) 1, and that, consequently, resort to
GRI 3(c), as you urge in your letter of June 25, 1992, is
unwarranted. Accordingly, the analysis of HRL 951754 correctly
applied the GRIs.
HOLDING:
Pursuant to the foregoing, HRL 951754 dated June 25, 1992,
is affirmed.
The boxer short in question, style 12061D, is classifiable
in subheading 6204.62.4055, HTSUSA, which provides for women's or
girls' suits, ensembles, suit-type jackets, blazers, dresses,
skirts...breeches and shorts, (other than swimwear): trousers,
bib and brace overalls, breeches and shorts: of cotton: other:
other: shorts: women's. The shorts are dutiable at the rate of
17.7 percent ad valorem and are subject to textile category 348.
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 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 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