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HQ 958009




July 25, 1995

CLA-2 R:C:T 958009 CMR

CATEGORY: CLASSIFICATION

TARIFF NO.: 6208.91.3010

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

RE: Modification of Headquarters Ruling Letter (HRL) 956506 of September 27, 1994; classification of women's woven flannel boxers

Dear Mr. Ortiz:

On September 27, 1994, Customs issued a ruling to you, HRL 956506, which you requested on behalf of Stafford Inc., classifying a pair of women's woven flannel boxers as shorts of subheading 6204.62.4055, Harmonized Tariff Schedule of the United States Annotated (HTSUSA). As the result of a later request for a ruling on the identical garment by another party, Customs has reviewed the decision in HRL 956506 and found the outcome in error.

Pursuant to section 625, Tariff Act of 1930 (19 U.S.C. 1625), 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, 2186 (1993) (hereinafter section 625), notice of the proposed modification of HRL 956506 was published June 21, 1995, in the Customs Bulletin, Volume 29, Number 25.

FACTS:

The garment at issue in HRL 956506, style 2139, is described 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 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 -2-
description at the bottom: "CONTENTS: One 100 percent cotton flannel boxers", "NIGHTSHIRT SAME PLAID AS BAG".

ISSUE:

Is style 2139 properly classified as women's shorts or sleepwear?

LAW AND ANALYSIS:

In HRL 957615 of May 24, 1995, Customs classified an identical garment as sleepwear similar to nightdresses and pajamas. In that ruling, the requester indicated the garment would be sold in its intimate apparel department where the customer could purchase the boxer separately or put it together with the matching nightshirt in a bag to make a complete set of pajamas.

In that case, additional information was submitted indicating specifically how the garment would be displayed and sold in the intimate apparel department of the store. In addition, the garment had a sewn in label indicating it was 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 was a factor considered in determining how the garment was marketed and likely to be used by purchasers, though it was not determinative in and of itself.

Based upon the additional information regarding the specific marketing of the garment at the retail level and taking into consideration all of the information presented, Customs believed the garment was being held out to consumers as a sleepwear garment which was part of a sleepwear line including nightshirts in a bag and as such would principally be used as sleepwear.

The garment was identical to the garment in HRL 956506. The arguments put forth in both cases were similar, however in HRL 957615 the information provided included information from the retailer stating specifically the manner in which it would display and sell the good. This additional information led to a decision that the garment was properly classified as women's sleepwear.

Based upon the decision in HRL 957615 and in the interest of uniformity, Customs is modifying HRL 956506. The garment at issue therein, style 2139, is properly classified as a sleepwear garment similar to pajamas and nightdresses in subheading 6208.91.3010, HTSUSA, textile category 352, dutiable at 11.8 percent ad valorem.

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 sleepwear garments similar to pajamas and nightdresses in subheading 6208.91.3010, HTSUSA, textile category 352, dutiable at 11.8 percent ad valorem.

In accordance with section 625, this ruling will become effective 60 days after its publication in the Customs Bulletin. Publication of rulings or decisions pursuant to section 625 does not constitute a change of practice or position in accordance with section 177.10(c)(1), Customs Regulations (19 CFR

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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