CLA-2 RR:CR:TE 961978 jb
Area Director
U.S. Customs Service
605 W. Fourth Ave.
Anchorage, AK 99501
RE: Decision on Application for Further Review of Protest No. 3195-95-1000225; men’s and women’s silk garments
Dear Sir:
This is a decision on an application for further review of a protest timely filed by Rode & Qualey, on behalf of TMI Apparel Ltd, (formerly, Antara Apparel, Inc.), against your decision regarding the proper classification under the Harmonized Tariff Schedule of the United States (HTSUS) for certain men’s and women’s silk garments. The entries at issue were liquidated between February 10 and March 17, 1995.
FACTS:
On October 22, 1993, our New York office issued New York Ruling Letter (NY) 890405, which classified certain styles of Antara’s men’s silk boxer shorts in subheading 6203.49.3050, HTSUSA. This ruling was revoked by Headquarters Ruling Letter (HQ) 956360, dated July 8, 1994, which reclassified the men’s silk boxer shorts in subheading 6207.19.0020, HTSUSA. Although the Protestant does not dispute the reclassification of those particular styles of men’s silk boxer shorts, the Protestant states that four of the entries involved merchandise which was not classifiable as men’s silk underwear in heading 6207, HTSUS, but which was nonetheless so classified. As such, the Protestant is seeking the correct classification for the merchandise in those entries which Customs mistakenly reclassified.
The merchandise at issue is as follows:
Entry numbers 110-5927312-5 and 110-5924922-4 contained women’s silk boxer shorts, referenced style number 983L, which were entered under subheading 6204.69.3040, HTSUSA, and were then reclassified as men’s silk underwear in subheading 6207.19.0020, HTSUSA. These garments featured an elasticized waist with no front fly opening.
Entry number 110-5810972-6 contained 100 percent men’s silk woven lounge pants, referenced style number BR-816, which were entered as trousers under subheading 6203.49.3035, HTSUSA, and then reclassified as men’s pajamas in subheading 6207.29.0020, HTSUSA. These garments featured a covered elasticized waist, two button fly front opening with a placket and side seam pockets.
Entry number 110-5843920-6 contained men’s silk shorts, referenced style number BR-818, previously the subject of Headquarters Ruling Letter (HQ) 954404, dated August 11, 1993, which classified the garments in subheading 6203.49.3050, HTSUSA. These shorts were reclassified in subheading 6207.19.0020. HTSUSA. These garments featured a fully elasticized waistband with an exterior drawstring and a placketed fly front opening which does not break the waistband, a one button closure, side seam and rear pockets.
ISSUE:
What is the proper classification for the subject merchandise?
LAW AND ANALYSIS:
Classification of merchandise under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) is in accordance with the General Rules of Interpretation (GRI). GRI 1 provides that classification shall be determined according to the terms of the headings and any relative section or chapter notes, taken in order. Merchandise that cannot be classified in accordance with GRI 1 is to be classified in accordance with subsequent GRI.
With respect to the women’s silk boxer shorts (entry numbers 110-5927312-5 and 110-59241922-4, style number 983L), in past rulings Customs has stated that the crucial factor in the classification of a garment is the garment itself. As stated by the court in Mast Industries, Inc. v. United States, 9 CIT 549, 552 (1985), aff’d 786 F.2d 1144 (CAFC, April 1, 1986), “the merchandise itself may be strong evidence of use”. However, when presented with a garment which is ambiguous and not clearly recognizable as sleepwear, underwear, loungewear or outerwear, Customs will look to 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. 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, Inc. v. United States, 16 CIT 407 (1992).
Although Customs has “historically” issued guidelines with respect to men’s underwear, no such guidelines exist for women’s underwear garments. Furthermore, as was stated in HQ 957133, dated August 14, 1995, which modified HQ 951754, dated June 25, 1992, which erroneously applied the guidelines applicable to men’s underwear to a pair of women’s boxer shorts, Customs position is that the guidelines for men’s boxer shorts are not to be used for the classification of women’s boxer shorts.
Heading 6204, HTSUSA, provides for, among other things, women's shorts. Shorts in heading 6204, HTSUSA, is an eo nomine provision with no limiting language regarding use. Thus, women' shorts in this heading includes all forms of women's shorts for all uses unless the garment is more specifically provided for elsewhere in the tariff. It is a basic tenet of tariff classification that "an eo nomine statutory designation of an article, without limitations or a shown contrary legislative intent, judicial decision, or administrative practice to the contrary, and without proof of commercial designation, will include all forms of said article." Nootka Packing Co. et. al. v. United States, 22 CCPA 464, 470, T.D. 47464 (1935).
As was stated in HQ 957133:
This office acknowledges the fact that current fashion trends have dictated that it is fashionable for women to wear boxer shorts as outerwear shorts on the streets. This use is also well recognized in the trade. A review of articles on boxer shorts and their use by women supports the position taken by Customs that women in the United States wear boxer shorts principally as outerwear shorts. In 1988 an article in the New York Times, Section B, p.6, dated July 12, 1988, titled "Boxer Shorts Meet the Sun", stated: "Boxer shorts- also having a big revival with men- have found new popularity as street wear for women." In yet another article, the New York Times, Section 1, Part 2, p.34, dated January 28, 1990, reported on the underwear designer Nicholas Graham, under the headline "Style Makers; Nicholas Graham: Underwear Designer". The writer commented that sales of boxer shorts to women as outerwear accounted for 50 percent of the sales by Mr. Graham's company.
As regards the subject women’s garments, we believe the design and construction of these garments makes it likely that women will wear these garments as either outerwear shorts or for lounging in the comfort of one’s home. As such, based on the physical appearance of the garments, and without the benefit of any documentation to strongly suggest otherwise, we agree that the principal use of these garments is not as underwear garments. The women’s boxer short are thus classified in the proper subheading under heading 6204, HTSUS.
With respect to the men’s lounge pants (entry number 110-5810972-6, style BR-816), in HQ 088635, dated May 24, 1991, and HQ 089367, dated July 31, 1991, Customs addressed the issue of the meaning of the term “pajamas” for tariff purposes. Those rulings cited various definitions of pajamas, including:
Essential Terms of Fashion: A Collection of Definitions, published by Fairchild, at 128,
defines pajamas as, “one or two piece item of apparel originally designed for sleeping...”
The American Heritage Dictionary, Second College Edition, at 893, “A loose-fitting garment consisting of trousers and a jacket, worn for sleeping or lounging.”
Webster’s II New Riverside University Dictionary, (1984), at 845, “A loose-fitting garment having of (sic) trousers and a jacket, worn for sleeping or lounging.”
In both HQ 088635 and HQ 089367, Customs concluded that no support could be found for the proposition that the common meaning of the term pajamas included the individual components of a pajama set standing alone. Thus, pajama bottoms imported without their matching pajama tops are not classifiable as pajamas; the same holds true for the opposite case.
In reaching a decision on the classification of “pajamas” we examine how they will be imported. If garments are imported in shipments of tops or bottoms only, they cannot be classified as pajamas. However, if the garments are imported in shipments consisting of equal numbers of matchings tops and bottoms, a different issue presents itself. In HQ 956492, dated September 19, 1994, Customs discussed the rationale for classification of pajamas as composite goods:
Based on the definition of composite goods cited above, the common meaning of pajamas and the historical classification treatment of pajamas, this office views pajamas as composite goods. The pajama components that make up the pajamas at issue are adapted to each other and are mutually complementary as required by the definition of composite goods.
* * *
* * * in addition, the pajamas meet the third requirement of the definition of composite goods in that they form a whole (pajamas) which would not normally be offered for sale in
separate parts. Normally, pajamas are sold as a top and bottom unit....
As was stipulated in Donalds Ltd., v. United States, 32 Cust. Ct. 310, 314, C.D. 1619 (1954), classification based upon the doctrine of condition as imported is a basic tenet of tariff classification. As the court stated in Donalds:
* * * in determining the proper classification applied to imported articles, the actual nature of the article of commerce, or commercial entity, involved must be taken as the determinant.
Thus, based upon the condition at the time of importation, shipments of equal number of matching sleepwear shirts and sleepwear bottoms will be viewed by Customs as shipments of composite goods that form a whole which are not normally sold as separate parts and are commercially known as pajamas. Accordingly, garments in such shipments will be classified as pajamas. In using the term “matching” Customs makes reference to design, style, color and size. In regard to sizing, provided the bulk of the shipment consists of garments (tops and bottoms) which are matched as to size, a slight variation in sizing between a limited number of tops and bottoms will not preclude classification as pajamas.
It thus follows that if the subject men’s woven lounge pants are imported separately, they cannot be classified as pajamas as they fail to meet the common and commercially understood definition of “pajamas”, in their condition as imported. Additionally, the physical features of this garment, that is, the secure two button fly front opening with placket, for modesty purposes, and the side seam pockets, would indicate that these garments are properly classified as trousers in the applicable subheading under heading 6203, HTSUS.
Finally, we address the men’s silk shorts, entry number 110-5843920-6, referenced style number BR-818. In HQ 954404, this very garment was classified as shorts in heading 6203, HTSUS. HQ 954404, which made reference to HQ 951032, dated May 7, 1992, stated:
After examining the garments in question, we find that there is nothing about the styling, fabric, cut, or construction of these garments which indicate that they were designed primarily for wear to bed. Rather, the garments are designed and constructed in a manner and style of knit sportswear. We believe that these garments are part of the relatively new men’s loungewear trade where the garments are designed for comfortable wear in and around the home. Garments of this type are multi-purpose garments rather than garments designed primarily to be worn to bed for sleeping.
Thus, the subject garments remain properly classified as shorts in heading 6203, HTSUS.
HOLDING:
Entry numbers 110-5927312-5 and 110-5924922-4, containing women’s silk boxer shorts, referenced style number 983L, were properly classified at the time of entry in subheading 6204.69.3040, 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): trousers, bib and brace overalls, breeches and shorts: of other textile materials: of silk or silk waste: containing 70 percent or more by weight of silk or silk waste: trousers, breeches and shorts. The applicable rate of duty at the time of entry was 7.5 percent ad valorem.
Entry number 110-5810972-6, containing 100 percent men’s silk woven lounge pants, were properly classified at the time of entry in subheading 6203.49.4020, HTSUSA, which provides for, men’s or boys’ suits, ensembles, suit-type jackets, blazers, trousers, bib and brace overalls, breeches and shorts (other than swimwear): trousers, bib and brace overalls, breeches and shorts: of other textile materials: containing 70 percent or more by weight of silk or silk waste: trousers and breeches. The applicable rate of duty at the time of entry was 3.0 percent ad valorem.
Entry number 110-5843920-6, containing men’s silk shorts, was properly classified at the time of entry in subheading 6203.49.3050, HTSUSA, which provides for, men’s or boys’ suits, ensembles, suit-type jackets, blazers, trousers, bib and brace overalls, breeches and shorts (other than swimwear): trousers, bib and brace overalls, breeches and shorts: of other textile materials: containing 70 percent or more by weight of silk or silk waste: shorts. The applicable rate of duty at the time of entry was 3.0 percent ad valorem.
Accordingly, the protest, with respect to the classification issues addressed herein, should be granted. In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, you are to mail this decision, together with the Customs Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing the decision.
Sixty days from the date of the decision, the Office of Regulations and Rulings will make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
John Durant, Director
Commercial Rulings Division