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HQ 952105

July 21, 1992

CLA-2 CO:R:C:T 952105 CRS


TARIFF NO.: 6204.62.4055

Stephen M. Zelman, Esq.
845 3rd Avenue
New York, NY 10022

RE: Women's cotton flannel boxer shorts; outerwear; sleepwear; request for reconsideration; HRL 951754 affirmed.

Dear Mr. Zelman:

This is in reply to your letter of July 1, 1992, on behalf of your client, Craftex Creations, Inc., in which you requested reconsideration of Headquarters Ruling Letter (HRL) 951754 dated June 25, 1992. Our decision follows below.


HRL 951754 concerned the classification of a pair of women's boxer-style shorts, style 12061D, made from 100 percent woven, cotton flannel, yarn-dyed fabric. The garment featured a fully elasticized waist with a turned waistband, fly front opening secured by a single button, single center back seam and hemmed mid-thigh length legs. The garment's relaxed waist measured approximately 22 inches, and its leg opening, approximately 27.5 inches in circumference.

In HRL 951754 the boxer shorts in question were classified in subheading 6204.62.4055, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), under the provision for women's shorts. This ruling was issued in response to your request for reconsideration of San Francisco District Decision (DD) 873141 dated April 20, 1992, and affirmed that ruling. You maintain, however, that the style 12061D boxer short at issue is properly classifiable in heading 6208, HTSUSA.


The issue presented is whether women's flannel boxer-style garments were correctly classified as shorts in HRL 951754.


Two headings are relevant for the purposes of this ruling: heading 6204, HTSUSA, which provides, inter alia, for women's or girls' shorts; and heading 6208, HTSUSA, which provides, inter alia, for women's or girls' nightdresses, pajamas, negligees, bathrobes, dressing gowns and similar articles. You dispute HRL 951754's classification of the instant garment as women's shorts on the grounds "that the ruling is based upon an erroneous understanding of the facts, is inconsistent with judicial and administrative precedent, and fails to apply applicable General and U.S. Rules of Interpretation set forth in the Harmonized Tariff Schedules (sic) of the United States." Letter of July 1, 1992, at 1.

In your letter of July 1st instant, you state that the facts indicate that style 12061D is classifiable in heading 6208, viz., as a form of nightwear or sleepwear. In support of this you cite certain advertising material, as well as statements from the vice president of Craftex Creations, Inc., and a buyer of intimate apparel for Target Stores, Minneapolis, Minnesota, who is familiar with the garment at issue. This information as to the merchandising of the instant boxer-style garment was submitted in connection with your request for reconsideration of DD 873141.

We have once again reviewed the information concerning the marketing of your client's merchandise. However, as we stated in HRL 951754:

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.

The advertisements you submitted describe garments made of fabric other than cotton flannel, e.g., polyester rayon. In addition, those advertisements that clearly portray sleepwear show boxer pajama sets consisting of a top and bottom. These articles are significantly different from the garment here in question. We therefore do not regard these advertisements as relevant to the classification of the instant cotton flannel garment.

Similarly, we do not find the statements made by the buyer for Target Stores and the vice president of Craftex Creations, Inc. to be persuasive of your client's position. The manner in which merchandise is sold is a factor to be considered but is not determinative of its classification. E.g., United States v. Ignaz Strauss & Co., Inc., 37 CCPA 32, C.A.D. 415 (1949); Russ Berrie & Co., Inc. v. United States 417 F.Supp. 1035 (1976); Borneo Sumatra Trading Co. v. United States, 311 F.Supp. 326 (1970). Although style 12061D may well be displayed and sold in an intimate apparel department, we are advised by the National Import Specialist familiar with the trade that, in addition to underwear and sleepwear, intimate apparel departments include a variety of other merchandise, such as dresses, rompers, jumpsuits, oversize shirts and boxer-style shorts.

Nor do we regard HRL 951754 to be inconsistent with judicial and administrative precedent. As we stated in HRL 951754:

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....

Thus although there was conclusive evidence in Mast and St. Eve, we do not find that the advertisements and other evidence offered on behalf of your client support the claim for classification as nightdresses, pajamas, negligees, bathrobes, dressing gowns and similar articles of heading 6208. Nor do we find HRL 951754 to be in conflict with prior rulings issued by this office. Where Customs has found women's boxer-style shorts to be classifiable as sleepwear, both the material from which the garment was constructed, as well as advertising material describing the article, unambiguously supported classification in heading 6208. HRL 088192 dated February 20, 1991. Similarly, men's boxer shorts classified as sleepwear have been so regarded on the basis of conclusive advertising and/or marketing information, for example, being sold with matching robes. E.g., HRL 950023 dated October 31, 1991; HRL 088489 dated April 18, 1991. The decision to classify men's flannel boxer shorts as non-outerwear garments has been also based on similar marketing information. E.g., HRL 089907 dated September 27, 1991.

Finally, on the basis of the facts presented, Customs is of the view that the garment in question has the characteristics of women's shorts of heading 6204. HRL 951754 at 5. It is therefore our opinion that the instant garment is classifiable pursuant to the terms of the headings, i.e., pursuant to General Rule of Interpretation (GRI) 1, and that, consequently, resort to GRI 3(c), as you urge in your letter of June 25, 1992, is unwarranted. Accordingly, the analysis of HRL 951754 correctly applied the GRIs.


Pursuant to the foregoing, HRL 951754 dated June 25, 1992, is affirmed.

The boxer short in question, style 12061D, is classifiable in subheading 6204.62.4055, HTSUSA, which provides for women's or girls' suits, ensembles, suit-type jackets, blazers, dresses, skirts...breeches and shorts, (other than swimwear): trousers, bib and brace overalls, breeches and shorts: of cotton: other: other: shorts: women's. The shorts are dutiable at the rate of 17.7 percent ad valorem and are subject to textile category 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 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 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.


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