CLA-2 R:C:T 957762 CMR
Mr. James Royer
Soong Yee Enterprises, Inc.
1620 Twenty-Sixth Street
Suite 2068-N
Santa Monica, CA 90404
RE: Classification of women's boxer-styled short
Dear Mr. Royer:
This is response to your request of January 12, 1995
regarding the classification of a women's cotton woven boxer-
styled short. A sample garment was submitted with your original
request. You submitted additional information and samples at our
request. Your samples will be returned, under separate cover, as
requested.
FACTS:
The garment at issue is a women's woven boxer-styled short.
The submitted sample is made of 100 percent cotton plain woven
fabric. The garment, style W61111, is a pull-on short with a
one-inch, covered, elasticized waistband. The waistband has an
adjustable two-button side opening (the opening extends
approximately five inches along the side starting at the break in
the waistband). The garment has hemmed leg openings and no
pockets and no fly.
In your submission, you state that the garment will be made
in two different fabrics--100 percent cotton, and 55 percent
cotton/45 percent polyester. It will imported in sizes small to
large. Production of the garment is being planned for Bangladesh
and Fiji and all shipments will arrive at the ports of Los
Angeles or Long Beach.
In your submission of February 3, 1995, you indicate that
the garment is made of a lighter weight fabric and is of lesser
quality than fabric which is required for general sportswear.
You refer to the garment as a "boxer short" indicating that
refers to its baggy oversized design. You state in your letter -2-
that you are specifically a women's sleepwear importer and that
the garment will be marketed as women's sleepwear, that is, as a
sleepwear bottom. You indicate that you sell exclusively to the
sleepwear departments of major department stores and to sleepwear
specialty shops. Style W61111 will be marketed with nightshirts,
pajamas, robes, and gowns of similar design and fabric.
At the request of this office, you submitted additional
garments (a nightshirt and pajamas) with which the shorts at
issue will be marketed. As was pointed out to you by a member of
my staff during a telephone conversation, the shorts at issue do
not match or complement the additional garments. The shorts are
made of a different fabric than the submitted nightshirt and
pajamas. The fabric has a different weave than the fabric of the
nightshirt (which has a twill weave); and, although the fabric of
the pajamas is also a plain weave, the shorts have no print or
color pattern to coordinate them with these additional garments.
The shorts at issue are made of a simple plain weave and are
white. You described the shorts as a generic pajama bottom.
ISSUE:
Are the submitted shorts, style W61111, classifiable as
women's sleepwear similar to nightshirts and pajamas and thus,
classifiable in heading 6208, HTSUSA, or are they classifiable as
shorts of heading 6204, 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. -3-
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.
In seeking classification of style W61111 as women's
sleepwear of heading 6208, HTSUS, you have stated the garment
will be marketed as women's sleepwear with other sleepwear
garments (samples of which were submitted). You stated that you
are a women's sleepwear importer and sell exclusively to
sleepwear departments and sleepwear specialty shops. 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.
Therefore, while the environment of sale is a consideration, it
is not determinative of the classification of the garment.
-4-
What we find most persuasive is the garment itself. Customs
is not persuaded that the fabric of the garment is too light-
weight or sheer for the garment to be worn as outerwear.
The garment is distinct from the other garments submitted with
which it is to be marketed. It does not match any of the
additional garments; nor is it complementary with them. It does
not appear to be part of a mix and match sleepwear line. It
stands by itself and by itself it appears to be simply a pair of
lightweight cotton woven shorts.
Without additional information, such as evidence regarding
the marketing and advertising of the shorts at issue, Customs
believes the garment is properly classified as women's shorts of
heading 6204, HTSUSA.
HOLDING:
The submitted garment, style W61111, is classifiable as
women's woven cotton shorts in subheading 6204.62.4055, HTSUSA,
textile category 348, dutiable at 17.6 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