CLA-2 R:C:T 957615 CMR
Ms. Carolyn B. Malina
Montgomery Ward & Co., Inc.
Montgomery Ward Plaza, 3-B
Chicago, Illinois 60671
RE: Classification of woven cotton flannel boxers in a bag
Dear Ms. Malina:
This ruling is in response to your request of November 3,
1994, for a classification ruling on a pair of women's cotton
flannel boxer shorts sold with a matching flannel bag. The
garment, style F532, will be imported through the ports of Los
Angeles or Philadelphia from Turkey, Hong Kong, China, or
elsewhere. A sample garment was received with your request along
with a sample of a flannel nightshirt sold with a matching
flannel bag.
FACTS:
The garment at issue, style F532, is identical to the
garment classified in Headquarters Ruling Letter (HRL) 956506 of
September 24, 1994, with the exception that the sample in this
case is a size small and in that case was a size large. The
garment is made of 100 percent cotton woven yarn dyed flannel
fabric. It features an elasticized waist with the elastic
exposed on the interior of the garment, a fake fly (no opening)
and typical boxer silhouette. The waist measurement of the
relaxed waist is about 24 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, small),
the word "FLANNELS" at the top, and the following description at
the bottom: "CONTENTS: One 100 percent cotton flannel boxers",
"BOXER SHORT SAME PLAID AS BAG".
The sewn-in label in the inside waistband of the shorts
states, "FLANNELS", and under that, "quality sleepwear".
-2-
You state that the garment will be sold in your intimate
apparel department where the customer can purchase the boxer
separately or put it together with the matching nightshirt in a
bag to make a complete set of pajamas.
In response to questions from Customs you submitted
information about the differences between the boxer short at
issue and outerwear shorts in general. You stated that
"Activewear's fabric construction is required to be a minimum of
5.5 ounces per square yard while these yarn dyed cotton boxers
have a minimum fabric weight of approximately 2.5 ounces per
square yard. You indicate in your letter that the fabric weight
of the sample garment is 4.0/4.5 ounces per square yard.
ISSUE:
Are the cotton flannel boxers in a bag classifiable as
women's other sleepwear similar to nightdresses and pajamas in
heading 6208, Harmonized Tariff Schedule of the United States
Annotated (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]."
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 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 -3-
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.
In HRL 956506, Customs ruled an identical garment was not
sleepwear, but was a multi-purpose garment. In that ruling, we
stated that it was our view that the boxer shorts belonged 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, and not as garments designed and used principally for
wear to bed. As loungewear, Customs classified the garment as
women's shorts.
In this case, additional information has been submitted
which indicates specifically how the garment will be displayed
and sold in the intimate apparel department of your store. In
addition, the garment has a sewn in label indicating it is 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 is a factor to be considered in
determining how this garment is marketed and likely to be used by
purchasers, though it is not determinative in and of itself.
-4-
Having received additional information regarding the
specific marketing of this garment at the retail level and taking
into consideration all of the information presented, Customs
believes the garment is being held out to consumers as a
sleepwear garment which is part of a sleepwear line including
nightshirts in a bag and as such will principally be used as
sleepwear.
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
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 F532, 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.
-5-
HRL 956506 classified an identical garment as women's woven
shorts in heading 6204, HTSUSA, due to an insufficiency in
information regarding specific marketing and advertising. Due to
the decision herein, HRL 956506 will be modified according to the
procedures set forth in section 625(c)(1), Tariff Act of 1930 (19
U.S.C. 1625 (c)(1)), 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).
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