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HQ 956506




September 27, 1994

CLA-2 CO:R:C:T 956506 CMR

CATEGORY: CLASSIFICATION

TARIFF NO.: 6204.62.4055

Mr. William Ortiz
S.J. Stile Associates Ltd.
153-66 Rockaway Boulevard
Jamaica, New York 11434

RE: Classification of certain women's woven flannel boxers; sleepwear v. outerwear; 6208, HTSUSA, v. 6204, HTSUSA

Dear Mr. Ortiz:

This is in response to your letter of April 7, 1994, on behalf of Stafford Inc., requesting the classification of certain women's woven flannel boxers, style 2139, imported with a matching flannel carrying bag. The garment will be manufactured in China and imported through JFK Airport. A sample garment and carrying bag were received with your request.

FACTS:

You describe style 2139 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 waist 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 description at the bottom: "CONTENTS: One 100 percent cotton flannel boxers", "NIGHTSHIRT SAME PLAID AS BAG".

Customs requested additional information on the boxers at issue and received copies of labels, sales order forms and a purchase contract. One of the label copies was similar to that which appears on the submitted flannel bag sample except that the label copy states: "BOXERS SAME PLAID AS BAG", "One 100 percent cotton flannel boxer". In view of this, we suspect the submitted sample bag may have a printing error.

ISSUE:

Are the boxers at issue classifiable as men's or women's boxers?

Are the submitted boxers classifiable as sleepwear of heading 6208, HTSUSA, or as outerwear of heading 6204, HTSUSA?

How is the carrying bag classified, i.e., separately or with the boxers as composite goods?

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]."

Note 8, Chapter 62, prescribes how garments are to be classified by gender. Note 8 provides:

Garments of this chapter designed for left over right closure at the front shall be regarded as men's or boys' garments, and those designed for right over left closure at the front as women's or girls' garments. These provisions do not apply where the cut of the garment clearly indicates that it is designed for one or other of the sexes.

Garments which cannot be identified as either men's or boys' garments or as women's or girls' garments are to be classified in the headings covering women's or girls' garments.

In this case, style 2139 has no closure. However, we believe that the cut of the garment is indicative of a women's garment as the boxers flare out somewhat from the waist as opposed to being straight on the sides. In addition, the presence of a fake fly is a feature more likely to be on a women's garment as opposed to a man's garment. Therefore, we accept that the submitted garment is a women's garment.

The issue of whether the submitted boxers are classifiable as sleepwear is more difficult to resolve. 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 -3-
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 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.

With these points in mind, Customs has reviewed the submitted classification request and we are not persuaded that the submitted garment is classifiable as sleepwear. In this case, the garment is not clearly sleepwear; it has the appearance of shorts. Although the flannel fabric, the label--"DOZE", and the exposed elastic waistband are features which may suggest -4-
sleepwear, these same features may be found in loungewear. Flannel is not a fabric used exclusively for sleepwear, and the company label does not identify the product, only the brand name.

This office requested further information regarding the advertising and marketing of the subject garment and did receive copies of purchase orders. The information supplied to us indicates the boxer short and matching bag are marketed as part of a line with sleepwear garments (e.g., nightshirts in a bag) to women's specialty lingerie stores and intimate apparel departments of larger stores. This information, however, is insufficient to indicate the boxers themselves are sleepwear and principally used as such. 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.

It is our view that the subject boxer shorts belong 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. We view the garment as a multi-purpose garment rather than a garment designed and used principally for wear to bed. As loungewear, the garment is classifiable as women's shorts.

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 -5-
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 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 women's woven cotton shorts in subheading 6204.62.4055, HTSUSA, textile category 348, dutiable at 17.7 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

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