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HQ 956237

July 14, 1994

CLA-2 CO:R:C:T 956237 CMR


TARIFF NO.: 6204.62.4055

Ms. Ludene Murphee
The GAP, Inc.
Two Harrison Street
San Francisco, CA 94105

RE: Classification of boxer-style short of woven eyelet fabric; 6208, HTSUSA, v. 6204, HTSUSA; sleepwear v. shorts; loungewear

Dear Ms. Murphee:

This is in response to your request of January 21, 1994, for a classification ruling on a pair of woven eyelet boxer-style shorts, style #727172. The original submission included a sample garment, specification sheets, and a brief description of the garment and its intended use. Additional information was submitted on June 28, 1994, and included samples of the matching brassiere and panty with which the shorts will be merchandised and a 1994 Summer Concepts book which is sent to Banana Republic stores to aid them in displaying and merchandising seasonal styles.


The boxer-style shorts at issue are constructed of 100 percent cotton, woven, embroidered, eyelet fabric. The garment has a 3/4- inch elasticized tubular waistband with a functional drawstring and decorative lace trim on the leg openings. [This office has two samples of this garment and the trim apparently varies somewhat as each has a different decorative trim.]

According to your January 21st letter, the garment will be displayed on hangers or folded on tables in the women's underwear section of Banana Republic stores. It will be displayed with a matching brassiere and panty that are domestically produced. The shorts will be sized XS-L and will be produced in Hong Kong.

In your letter, you described the garment as a lounge/sleep bottom and stated that it is intended for sleeping or lounging in the privacy of one's home. -2-


Is the woven eyelet boxer-style short at issue, style 727172, classifiable as a garment of heading 6208, HTSUSA, which provides for, among other things, nightdresses and pajamas and similar articles; or, is it properly classifiable as shorts of heading 6204, HTSUSA?


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's 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 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 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."

Thus, while Customs will consider advertising, marketing, merchandising and other factors, we recognize that these factors may at times be misleading and that the most 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).

As already noted, the court in Mast at 552, noted that nightwear are "garments to be worn to bed." In determining if a garment is classifiable as a nightwear or sleepwear garment, Customs must look to its principal use and whether the subject garment is principally worn to bed. See, Additional U.S. Rule of Interpretation 1(a)--classification controlled by use is principal use of goods of that class or kind.

In your letters, you describe style 727172 as a lounge/sleep bottom and state it is intended for sleeping or lounging in the privacy of one's home. You believe the "sheer eyelet fabric makes this garment inappropriate for wear in public." It is merchandised with a matching brassiere and panty in the intimate section of the Banana Republic stores.

The environment of sale may be a consideration in determining the identity of a garment and thus its proper classification. However, Customs has long recognized and acknowledged that intimate apparel/sleepwear departments often sell a variety of merchandise, including garments intended for use as outerwear. So, while a factor to be considered, the department or area within a store in which a garment is sold is not conclusive or determinative of the garment's classification. See, HRL 955341 of May 12, 1994 and rulings cited therein. The fact that style 727172 is sold in the intimate apparel section of the store does not lead us to conclude it is sleepwear.

In this case, the classification decision is based upon the garment and the fabric with which it is made. The heavily embroidered cotton eyelet fabric does not appear to be soft and comfortable, factors generally associated with sleepwear. Instead, it is somewhat rough to the touch, no doubt a result of the extensive embroidery. The eyelet fabric is of a kind commonly used in the fabrication of dresses and blouses. We are not persuaded that it is too sheer or revealing for wear in public, i.e., in the company of persons other than family or intimate friends. As with dresses or blouses made of such fabric, all that is required is that the wearer wear proper undergarments. With that in mind, we note this garment is sold with a matching undergarment, i.e., the matching panty.

You identified the garment as sleepwear/loungewear leading us to conclude that it is intended to be a multi-purpose garment. We are not persuaded, based upon the garment itself, that it is a garment which will be principally used as sleepwear. Instead, we accept your designation of the garment as loungewear and believe that that is its principal use, i.e., wear in and around the home and possibly outside the home. As a loungewear garment, style 727172 is classifiable as shorts of heading 6204, HTSUSA.


Style 727172 is classifiable as women's cotton shorts in subheading 6204.62.4055, HTSUSA, textile category 348, dutiable at 17.7 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.


John Durant, Director
Commercial Rulings Division

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