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HQ 957762




April 28, 1995

CLA-2 R:C:T 957762 CMR

CATEGORY: CLASSIFICATION

TARIFF NO.: 6204.62.4055

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.

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

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