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HQ 957615




May 24, 1995

CLA-2 R:C:T 957615 CMR

CATEGORY: CLASSIFICATION

TARIFF NO.: 6208.91.3010

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".

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.

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.

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

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