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HQ 951754

June 25, 1992

CLA-2 CO:R:C:T 951754 SK


TARIFF NO.: 6204.62.4055

Stephen M. Zelman
Attorney at Law
100 East 42nd Street, 22nd floor
New York, N.Y. 10017

RE: Classification of 100% cotton flannel women's boxer-style shorts; outerwear v. sleepwear; multiple-use garment; importer must provide evidence that article is designed, marketed and sold as claimed; availability in intimate apparel department not conclusive; 6204, HTSUSA; Mast Industries, Inc. v. United States; Hampco Apparel, Inc. v. United States; St. Eve International, Inc. v. United States; HRL 082118 (5/20/88).

Dear Mr. Zelman:

This is in response to your inquiry of May 4, 1992, on behalf of Craftex Creations, Inc., requesting the tariff classification and textile category applicable to a garment described as a women's boxer-style short. A sample was submitted to this office for examination.


The submitted sample, marked style 12061D, is a pair of women's boxer-style shorts constructed from woven 100% cotton flannel yarn-dyed plaid fabric. The pull-on shorts feature a fully elasticized waist with a turned waistband, fly front opening secured by a single visible button, single center back seam and hemmed mid-thigh length legs. The garment's relaxed waist measures approximately 22 inches. The garment's leg opening measures approximately 27.5 inches in circumference.

Your submission refers to the garment as "boxer-style sleepwear". You claim that District Decision (DD-San Francisco) 873141, dated April 20, 1992, prohibits importation of the merchandise because your client cannot obtain the textile quota category required by the ruling. DD 873141 classified the subject merchandise as women's or girls' cotton shorts under subheading 6204.62.4055, HTSUSA, with a textile category of 348.


Whether the women's flannel boxer-style shorts are properly classifiable as sleepwear under heading 6208, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), or as women's shorts under heading 6204, HTSUSA?


Classification of merchandise under the HTSUSA is governed by the General Rules of Interpretation (GRI's) taken in order. GRI 1 provides that classification shall be in accordance with the terms of the headings and any relative section or chapter notes.

The subject merchandise is of a type of garment that is capable of being used for more than one purpose. Use of this article both as shorts and as sleepwear is feasible and it is this duality which complicates classification. When confronted with garments which are claimed to be of a particular class, yet strongly resemble articles of another class, Customs will first examine the article itself and its particular design features and thereafter any other extrinsic evidence pertaining to the marketing, advertising and sale of the article. Customs will also consider information regarding what the garment passes for in the trade and commerce of the United States and what the expectations of the ultimate purchaser are. See St. Eve International, Inc. v. United States, Slip. Op. 87-37 (1987). See also Headquarters Ruling Letter (HRL) 082118, dated May 20, 1988, which sets forth Customs' approach to the classification of ambiguous articles sold in an ambiguous sales environment.

In the instant case, Customs is asked to classify a women's woven 100% cotton flannel boxer-style short. Customs has developed guidelines which aid in distinguishing between underwear boxer shorts and outerwear boxer shorts. See HRL 087940, dated September 16, 1991. Although the distinction made in that case was between outerwear and underwear, as opposed to the instant case where we are to determine whether the garment is outerwear or sleepwear, the criteria set forth in HRL 087940 nevertheless provides the relevant analysis because neither sleepwear nor underwear are worn as outerwear and both are garments to be worn in the privacy of one's own home. Outerwear may be worn to bed (i.e., t-shirts), but this is a fugitive use and not a basis for classification. Sleepwear, like underwear, is not worn as outerwear.

In HRL 087940, Customs deemed the following characteristics determinative of outerwear:

1. Fabric weight greater than 4.2 ounces per square yard;

2. An enclosed or turned waistband;

3. Lack of a fly or presence of a lining;

4. A single leg opening greater than the relaxed waist;

5. The presence of belt loops, inner or outer pockets or pouches;

6. Multiple snaps at the fly opening;

7. The side length of a size medium should not exceed 17 inches.

The subject merchandise possesses two of the above- enumerated features: the garment has a turned waistband and the circumference of a single leg opening measures 27.5 inches and is therefore greater than the waist's circumference which measures 22 inches. No information regarding the fabric weight of this garment was submitted to this office. The presence of more than one of these features gives rise to a rebuttable presumption that a garment is outerwear. As mentioned, additional criteria such as marketing, advertising, industry treatment of this garment and other physical attributes of the garment may be considered to refute this presumption.

In your submission you state that this garment is designed, manufactured, marketed and used as sleepwear. You cite Mast Industries, Inc. v. United States, Slip Op. 85-114 (1985) and St. Eve International, Inc. v. United States, Slip Opinion 87-37 (1987) in support of your claim. No conclusive evidence was submitted which substantiates this claim. As set forth above, the design characteristics of this garment create a rebuttable presumption that the garment is outerwear. With regard to the marketing and advertising of this particular article, the only information submitted to this office consisted of a written statement that a back-to-school catalogue will carry these articles on the sleepwear page (no photo or advertising copy was provided) and the store where these items will be sold (Target Stores) will display the garments in the intimate apparel section. In a contradictory subsequent statement provided by the intimate apparel buyer of Target Stores, it was stated that the shorts will be displayed in the panty and daywear section and will be marketed for wear underneath skirts and shorts. Obviously, this is not how sleepwear is worn and there is discrepancy in the manner in which these garments are advertised and displayed in the store. In a phone conversation with the buyer, Customs was also informed that the garments will be sold on racks which have a photo topper showing a model wearing the
subject merchandise with a T-shirt and a robe. Therefore, from a single source we have been told that the garment will be advertised as sleepwear, yet displayed with panties and daywear, and have accompanying photos in the underwear section showing the article worn with outerwear and a robe.

In your June 22, 1992, submission to this office, you have provided us with sleepwear advertisements from several other stores. While Customs will take into consideration evidence of how certain articles are being treated in the industry, the articles must be the same as those under consideration for there to be any relevance to the comparison. You submitted a MACY'S ad which shows polyester "satin boxers" positioned on the same page with other sleepwear and underwear. You also submitted ads from VICTORIA'S SECRET and LORD & TAYLOR which show women wearing shorts and matching top sets described as "boxer pajama sets". The satin boxers are not similar to the articles at issue because they are made from a different fabric and the sheerness and design features of that style may render them unsuitable for use as outerwear. The "boxer pajama sets" are also different from the articles at issue in that they are polyester two-piece sets clearly designed to be worn together and they are unambiguously marketed as "pajamas". While the ads use the term "boxer" to describe the sleepwear, this term alone is not absolutely determinative of classification as either sleepwear or underwear.

The mere fact that the subject merchandise will be displayed in the intimate apparel department of a large store that also carries outerwear does not conclusively prove that the garment is either sleepwear or underwear. It is well established that intimate apparel departments include merchandise other than intimate apparel. In fact, virtually any issue of BODY FOUNDATIONS AND INTIMATE APPAREL, the trade publication for the intimate apparel business, will demonstrate that intimate apparel departments market a wide variety of "leisurewear" (i.e., loose, comfortable clothing worn in or outside the home in a casual environment). This fact is verified by a statement by the intimate apparel buyer from Target Stores who acknowledges that her department carries outerwear sundresses.

Furthermore, Customs notes that while the use of flannel fabric has traditionally been associated with sleepwear, it is not exclusively limited for this purpose. Certainly flannel is acceptable as an outerwear fabric, as is evidenced by its commonplace use in flannel shirts.

You assert that Craftex' line of clothing is limited to women's sleepwear, its location is in Manhattan's nightwear/sleepwear district and that outerwear buyers do not
visit Craftex' premises. Customs has rejected claims that imported merchandise should be classified based solely on how a company characterizes itself, its product line or where it locates its business. Absent substantive evidence based on design characteristics, marketing, advertising and manner of sale to indicate otherwise, we are unwilling to classify these garments as sleepwear based on the information submitted.

Articles such as these are offered for sale in various retail environments and, when offered in the intimate apparel department, are often casually displayed with other leisurewear and combined with casual upper body garments which are clearly outerwear. As mentioned supra, Customs will take into consideration evidence of how these garments are treated in the fashion industry. We note in particular an advertisement for boxer shorts found in BODY FOUNDATIONS AND INTIMATE APPAREL magazine, which reads:

Boxer shorts become a natural for spring/summer lounging and sleeping. They are comfortable and practical as well, making the transition from the house to the streets with ease.

The other advertisement is from a JC PENNEY CATALOGUE and describes boxers as leisurewear.

We are of the opinion that the submitted sample is a multiple use garment intended as a comfortable and casual lounging garb that may be worn inside and outside the home. The garment has the physical characteristics of outerwear and may be worn outside. The garment is not sleepwear and we are not persuaded that any use as sleepwear will exceed all other uses to which this merchandise may be put.

Heading 6204, HTSUSA, provides for, inter alia, women's shorts, and the subject merchandise is properly classifiable here.


The article at issue is classifiable under subheading 6204.62.4055, HTSUSA, which provides for women's or girls' suits, ensembles, suit-type jackets, blazers, dresses, skirts, divided skirts, trousers, bib and brace overalls, breeches and shorts (other than swimwear): of cotton: other... shorts: women's. The rate of duty is 17.7% ad valorem and the textile category is 348.

The designated textile and apparel category may be subdivided into parts. If so, 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 that your client 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 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, your client should contact its local Customs office prior to importing the merchandise to determine the current applicability of any import restraints or requirements.


John Durant, Director
Commercial Rulings Division

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