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HQ 957068

October 11, 1994

CLA-2 CO:R:C:T 957068 CMR


TARIFF NO.: 6204.62.4055

U.S. Customs Service
Area Director, JFK
Building #77, JFK Airport
Room 228
Jamaica, New York 11430

RE: Internal Advice Request; classification of certain women's woven cotton flannel boxer shorts

Dear Mr. Mattina:

This ruling is in response to an internal advice request filed at JFK Airport by Ross & Hardies on behalf of their client, Inner Secrets/Secretly Yours, Inc.. At dispute is the classification of certain women's cotton flannel boxer shorts. Your port has issued redelivery notices for two entries and has rejected other entries of this merchandise for failure to present the proper textile visa. The importer claims the garments are properly classified as women's underwear of subheading 6208.91.3010, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), and subject to textile category 352. Customs at JFK believes the subject garments are properly classified as women's shorts of subheading 6204.62.4055, HTSUSA, and subject to textile category 348.


The garments at issue are women's woven 100 percent cotton flannel boxer shorts. A sample, style 45481, was submitted along with a matching brassiere and panty made of the same flannel fabric. The submitted boxer sample has the basic boxer shape, an elasticized waist with the elastic exposed on the interior of the garment, a mock fly front that has been stitched across horizontally at two points (essentially dividing the fly into thirds and precluding it from having any functional nature), and two buttons sewn on the waist in the center of the front. In addition, it is submitted that the flannel fabric weighs approximately 3.9 ounces per square yard and the side length of the submitted size medium (waist 27-28 inches) is less than 17 inches. A second boxer, style 84581, was also received. The garments are imported from Hong Kong. -2-

The importer submits that Inner Secrets/Secretly Yours markets only underwear to underwear departments and that its licensing agreement precludes the importer from using the mark "NO EXCUSES", under which the boxers are sold, for anything other than "bras, panties, foundation garments, underwear, daywear and all other intimate apparel products for ladies and teens". The boxers are displayed in the underwear department of stores alongside the matching bras and panties. Photographs were submitted showing the boxers so displayed. Letters from Walmart and Kmart buyers have been submitted to confirm that the cotton flannel boxers are sold and marketed as underwear in the intimate apparel departments of these stores. Advertising material was also submitted to substantiate the claim that the garments at issue, and other virtually identical garments, are advertised as underwear. These advertisements include:

An advertisement by Walmart of the flannel bra and panties (the boxers were not included in the advertisement). The garments were displayed on a page which included advertisements for other underwear garments, i.e., panties and bras.

An advertisement by Ames showing models wearing in one case, a bra and panties, and in the other, a bra and boxers. The garments were advertised as "Bra and Panty Coordinates", "Soft cup or underwire bras, matching panties or boxers.

An advertisement by Target showing models wearing in one case, a plaid underwire bra and, in the other case, a plaid bustier. Each model also wore a matching boxer short.

However, the importer also submitted two advertisements from Victoria's Secret catalogues showing models wearing bras with matching boxers. One advertisement reads:

Perfect this time of year: red plaid . . . cotton flannels to lounge in. * * * [emphasis added].

The other reads:

Spirited cotton loungewear: Our boxer pyjama set and matching bra in a navy . . . and white tattersall plaid.

The importer's counsel argues that HRL 951754 of June 25, 1992, established objective criteria for determining whether women's boxer shorts should be classified as underwear. Counsel submits that the subject boxers meet the criteria for classification as underwear.

In their letter of September 23, 1994, the importer's counsel rejected consideration of their client's garment as sleepwear or loungewear, maintaining that the garment is underwear. In a meeting at Customs Headquarters, the importer informed Customs that the target market for the boxer shorts is women from the teens to mid-twenties.


Did HRL 951754 of June 25, 1992, establish objective criteria for classifying women's boxer shorts as underwear and, do the subject boxers meet those criteria for underwear?

Are the women's cotton flannel boxer shorts at issue classifiable as underwear of heading 6208, HTSUSA, as claimed, or as shorts of heading 6204, HTSUSA, as classified by Customs at JFK Airport?


Before analyzing the classification of the subject garment by the traditional methods of tariff classification, we will examine the claim which has been put forth that HRL 951754 of June 25, 1992, established objective criteria for classifying women's boxer shorts as underwear garments.

In HRL 087940 of September 16, 1991, Customs dealt with the tariff classification of a pair of boxer shorts claimed to be men's underwear. In the ruling, Customs noted changing fashion and the growing popularity of wearing boxer shorts as outerwear rather than solely as underwear. In addition in the ruling, classification in heading 6208, HTSUSA, was summarily dismissed by noting, "boxer shorts are not worn by women as underwear...". The ruling then lists features considered indicative of non- underwear garments.

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

2. An enclosed or turned over waistband;

3. Lack of a fly or 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 (not including the waistband), or button or zipper fly closures; [closed parentheses missing in original] -4-

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

After listing the criteria, the ruling states:

Although no one feature is determinative, the presence of more than one of the above features gives rise to the presumption that a boxer style garment is either outerwear or a unisex garment rather than men's underwear. This presumption is rebuttable, however, and the above criteria will be evaluated in conjunction with advertising and marketing information. In addition, size specifications will be considered and compared to those supplied by domestic underwear manufacturers. [emphasis added; reference to size specifications and domestic manufacturers is in regard to men's underwear]

Clearly, HRL 087940 created objective criteria to be used as an aid in determining if men's boxer style garments were non- underwear garments. They were not drafted with women's garments in mind as is evident from the statement in the ruling that "boxer shorts are not worn by women as underwear...". This belief has been restated by Customs in several rulings. See, HRL 087922 of October 2, 1991; HRL 087942 of October 2, 1991; and, NYRL 894070 of February 18, 1994.

Customs erred in utilizing the criteria set forth in HRL 087940 to determine the classification of a pair of women's flannel boxer-style shorts in HRL 951754 of June 25, 1992. In that ruling, the flannel shorts at issue were found to be classified in heading 6204, HTSUSA, as shorts, as the shorts were viewed by Customs as a multiple use garment and not principally used as sleepwear (the claimed classification). Classification as underwear was not an issue in that ruling.

The importer's counsel argue that their client relied to his detriment on the analysis in HRL 951754; specifically, on the use of the seven criteria listed above. Therefore, we will look at the garment at issue in relation to the seven criteria. However, Customs maintains the position that these criteria were developed solely to help distinguish men's underwear boxer shorts from outerwear boxer shorts. Use of these criteria in regard to women's garments is an error and HRL 951754 will be modified to reflect that view.

While counsel for the importer argues that the subject garment only has one feature of the seven listed criteria and so, in their view, is presumed to be underwear, after examining the submitted garment, we find that it possesses two of the listed features: a single leg opening greater than the relaxed waist and, no fly. Counsel admits these features on page 2 of their -5-

September 23, 1994 letter. The garment has a mock fly which, in essence, means it has no fly. The fly is not functional as it has been sewn at two points apparently in order to help the fabric lie flat. While women may have no need for a fly; the lack of a fly is one of the listed criteria. As stated in HRL 951754, "[t]he presence of more than one of these features gives rise to a rebuttable presumption that a garment is outerwear." As the subject garment has two of the listed features, the rebuttable presumption is that the garment is outerwear. See, HRL 956874 of September 19, 1994, in which the impracticality of a fly was considered supporting evidence that a garment was not underwear.

Since Customs has applied the seven criteria upon which the importer claims reliance and based on those criteria we find there is a rebuttable presumption that the garment is outerwear, we can only assume that the importer misread the criteria. Nevertheless, as we have already pointed out, these criteria were not devised with women's garments in mind and were never intended for use in determining when women's boxer shorts are underwear, sleepwear or outerwear.

As the criteria upon which the importer relied leads to a presumption that the subject garment is outerwear, Customs finds no basis for a detrimental reliance claim. In addition, Customs rejects the use of those criteria for determining the classification of women's boxer shorts. We will decide the classification of the subject garment based upon the traditional methods of classification, i.e., resort to the terms of the tariff and the basic tenets of classification.

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]."

The headings at issue are heading 6208, HTSUSA, which provides for, women's or girls' singlets and other undershirts, slips, petticoats, briefs, panties, nightdresses, pajamas, negligees, bathrobes, dressing gowns and similar articles; and, heading 6204, HTSUSA, which provides for, inter alia, women's or girls' shorts.

The Explanatory Notes (EN) to the Harmonized Commodity Description and Coding System, the official interpretation of the Harmonized System at the international level, offers little assistance in this case. The EN for heading 6208, states in relevant part:

This heading covers underclothing for women or girls' (singlets and other vests, slips, petticoats, briefs, panties and similar articles), not knitted or crocheted.

The provisions of the EN to heading 6103, which apply mutatis mutandis to the articles of headings 6104 and 6204, state in relevant part:

(F) "Shorts" means "trousers" which do not cover the knee.

And, trousers are defined in the same note as:

(D) "Trousers" means garments which envelop each leg separately, covering the knees and usually reaching down to or below the ankles; these garments usually stop at the waist; the presence of braces does not cause these garments to lose the essential character of trousers.

GRI 3 provides, in part:

When by application of rule 2(b) or for any other reason, goods are, prima facie, classifiable under two or more headings, classification shall be effected as follows:

(a) The heading which provides the most specific description shall be preferred to headings providing a more general description. * * *

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. Therefore, women's shorts of heading 6204, HTSUSA, 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).

Customs believes, heading 6208, HTSUSA, provides a more specific description, i.e., it provides for named articles which are identifiable by their use and may be characterized as "intimate apparel". They are garments which are recognized as either underwear (the singlets and other undershirts, slips, petticoats, briefs and panties), sleepwear (the nightdresses, pajamas and negligees), or garments normally worn indoors in the presence of family or close friends (the negligees, bathrobes and dressing gowns). See, HRL 956202 of September 29, 1994. -7-

When confronted with two possible classifications for an article, a general rule of tariff construction is that in the absence of legislative intent to the contrary, a good described by a use provision and an eo nomine provision is generally more specifically provided for under the use provision. United States v. Siemens America, Inc., 68 CCPA 62, 70, C.A.D. 1266 (1981). Therefore, we will first determine if the garment at issue is classifiable in the more specific provision, heading 6208, HTSUSA.

The importer claims the boxer shorts at issue are women's underwear of heading 6208, HTSUSA. The garment must therefore fall within the definition of briefs or panties or be a similar article, i.e., principally used as women's underwear. There appears to be no dispute that the boxer shorts are not within the definition of or commonly recognized as briefs or panties. It is well-established that tariff terms are construed in accordance with their common and commercial meanings and that the common meaning of a tariff term is a question of law. Toyota Motor Sales, U.S.A., Inc. v. united States, 7 CIT 178, 182, 585 F. Supp. 649 (1984), aff'd, 753 F.2d 1061 (Fed. Cir. 1985). Thus, we must determine if the boxer shorts are classifiable as a similar article to briefs or panties. To be a similar article, the boxer shorts must be principally used by women as underwear.

As noted above, the Explanatory Notes give us some guidance regarding scope of heading 6208, HTSUSA, as regards women's underwear. Further guidance may be found in dictionaries. For instance, "underwear" is defined in Webster's II New Riverside University Dictionary (1984), at 1259, as: "Clothing worn under the outer clothes and next to the skin." From the same source, "underclothes" are defined, at 1257, as: "Clothes worn next to the skin: UNDERWEAR." In Children's Hose Inc. v. United States, 55 Cust. Ct. 6, 8, C.D. 2547 (1965), the court examined the term "underwear" and appeared to conclude that underwear is a garment of an intimate nature which is worn under an outer garment and not meant to be seen when worn.

Classification based upon use is governed by the language of Additional U.S. Rule of Interpretation 1(a) which requires that:

In the absence of special language or context which otherwise requires--
a tariff classification controlled by use (other than actual use) is to be determined in accordance with the use in the United States at, or immediately prior to, the date of importation, of goods of that class or kind to which the imported goods belong, and the controlling use is the principal use. [emphasis added]

Thus, in order to be classified as women's underwear of heading 6208, HTSUSA, the boxer shorts at issue must belong to a class or kind of goods for which the principal use is as women's underwear, i.e., the principal use must be for wear next to the skin and under other clothing by women in the United States as underwear. That use must be the principal use at, or immediately prior to, the time of importation.

In United States v. Carborundum Co., 63 CCPA 98, C.A.D. 1172, 536 F.2d 373 (CAFC) Cert. den., Carborundum Co. v. United States, 429 U.S. 979 (1976), the appeals court established criteria to be applied to determine in which class or kind of goods an imported article belongs. These criteria are:

1. the general physical characteristics of the merchandise,

2. the expectations of the ultimate purchasers,

3. the channels, class or kind of trade in which the merchandise moves,

4. the environment of the sale and the manner in which the merchandise is advertised and displayed,

5. the use, if any, in the same manner as merchandise which defines the class,

6. the economic practicality of so using the import, and

7. the recognition in the trade of this use. Carborundum, 63 CCPA 98, at 102.

Regarding the criteria listed above, the importer has presented a sample garment, along with a matching bra and panty. The importer, Inner Secrets/Secretly Yours, submits that the company only markets underwear to underwear departments. The boxer shorts are to be displayed in intimate apparel departments placed near the matching bras and panties. The importer submits that its licensing agreement precludes the company from using the mark NO EXCUSES (under which the boxer shorts are sold) for anything other than "bras, panties, foundation garments, underwear, day wear and all other intimate apparel products for ladies and teens." As to use and the expectations of the purchasers, the importer claims the garment is principally used as underwear and as it is sold in the intimate apparel department next to other underwear garments, purchasers will use the boxer shorts as underwear.

At first glance, it may appear that support can be found for the importer's position in Mast Industries, Inc. v. United States, 9 CIT 549 (1985), aff'd 786 F.2d 1144 CAFC (1986), and in -9-

St. Eve International, Inc. v. United States, 11 CIT 224 (1987). In Mast, the court determined that a garment which was designed, manufactured and used as nightwear was classifiable as nightwear. In St. Eve, the court held that a garment which was manufactured, marketed and advertised as nightwear was chiefly used as nightwear and so was classifiable as such. The importer maintains that it is an underwear company and that the boxer shorts are distributed, marketed and sold as underwear and so are classifiable as underwear. Customs disagrees. We believe the subject boxer shorts are advertised ambiguously and sold as multiple use garments. We believe the boxer shorts at issue belong to a class or kind of goods known as shorts and not as women's underwear.

First we want to address the marketing and advertising presented to us. The importer submitted advertisements which were described in the FACTS portion of this ruling. It is important to note that the advertisements by Walmart, Ames and Target do not identify the garments being advertised as underwear, but merely identify the garments by name, i.e., bra, panties, boxer shorts. The Target advertisement shows two models, one wearing a plaid bra and matching plaid boxer shorts, the other wearing a plaid bustier and plaid boxer shorts. The garments are not characterized in the advertisement in any manner, either as underwear or outerwear. We find the submitted advertising is unpersuasive. The advertisements from the Victoria's Secret catalogue were not supportive of the importer's claim and in fact showed boxer shorts promoted as loungewear.

Customs acknowledges that there are some garments styled like boxer shorts but made of soft silky fabric that may be used by some women as underwear. However, Customs does not believe that cotton flannel boxer shorts, as a class of garments, are principally used in the United States by women as underwear. The general physical characteristics of the garment at issue are those of shorts. Its name even identifies it as shorts. Due to its construction, we believe the garment would not be suitable as underwear under most women's fashions. The bulk of the garment, the looseness of its fit and the type of fabric used (cotton flannel), in our opinion, make it unlikely that women would wear flannel boxer shorts principally as underwear. However, the type of fabric and the design and construction of the garment do make it feasible and, we believe likely, that women will wear this garment as shorts for various reasons including, and we believe principally, for wearing in public. This belief is based not only on the garment before us, but on the knowledge that it is fashionable for women to wear boxer shorts as shorts on the street and this use is well known in the trade.

Part of the argument that the boxer shorts at issue are underwear is that they are marketed with a matching bra and -10-
panty. Customs does not dispute the likelihood that the panties will be principally used as underwear, however, the matching bra is of a type which may be worn as outerwear. In HRL 950685 of March 11, 1992, Customs classified certain bras intended to be worn as outerwear. Fortunately, the tariff provides specifically for brassieres in heading 6212, HTSUSA, without distinction between underwear or outerwear. In HRL 950685, Customs noted:

The undergarment industry has undergone tremendous change in the last few years as to what is currently acceptable as outerwear. Customs recognizes that fashion trends may dictate how certain garments are being worn and that bras worn as outerwear are a relatively new fashion phenomenon. When most dictionaries defined brassieres as "undergarments", the accepted fashion of the day mandated that brassieres be hidden from view when worn. As is readily apparent from what is currently in vogue, that rule no longer holds true. A brassiere does not have to be worn as an undergarment; it need only possess certain requisite body supporting functions.

This office made several inquiries to well-known lingerie and outerwear manufacturers to get the fashion industry's current definition of "brassiere", Olga Company, a manufacturer of lingerie, asserted that it is acceptable these days to wear bras as outerwear. They recognize this trend by manufacturing velvet bras that may be worn alone underneath a blazer or sheer blouse. The end result is that these bras, which are made by a traditional maker of lingerie and sold in lingerie departments, are intended to be seen when worn. Another manufacturer we contacted, Calvin Klein, makes both lingerie and outerwear. They too believe that the acceptable role of brassieres for use as outerwear has greatly expanded over the past several years. * * * Both types of garments [referring to underwear and outerwear brassieres] are brassieres providing equal body supporting functions; the only difference is that it is now acceptable to let brassieres that have been embellished in some manner show under outerwear or even be worn by themselves.

We believe the importer in this case, Inner Secrets/Secretly Yours, is well-aware of this fashion trend, particularly among the target-age group for the boxers at issue, i.e., young women in their teens to mid-twenties. In an August 2, 1993, article in Discount Store News, Vol. 32, No. 15, p. A18, entitled "Equating fashion with function; women's underwear", the trend toward dual- use garments and the sale of garments which were intended to be worn as outerwear though sold in the intimate apparel department was highlighted. The following excerpts from the article are particularly interesting: -11-

In mass market intimate apparel departments, the balance of fashion and function is always critical.

Matching bra and panty sets have helped boost panty sales as has an emphasis on the innerwear/outerwear trend of intimate apparel.

The chain [referring to Kmart] recently took advantage of the juniors, innerwear-as-outer-wear bra trend to reach into higher price points. Though displayed in Kmart's intimate apparel department, a set of bras from Inner Secrets, Inc. were labeled "playwear", "funwear" and were defined as innerwear/outerwear. These were displayed with matching panties. * * * [emphasis added].

Clearly, the importer involved in this case, is aware that garments intended to be worn as outerwear are sold in the intimate apparel department of stores and in fact, produces and distributes bras which are so marketed and advertised. Thus, we find the fact that the boxer shorts are marketed in the intimate apparel department alongside a matching bra which may be worn as outerwear an unpersuasive argument that the boxer shorts are underwear or principally used as underwear by women.

A review of articles on boxer shorts and their use by women supports the position taken by the Customs Service that women in the United States wear boxer shorts principally as shorts to be seen. These articles illustrate that the trade recognizes this use of boxer shorts, that it is economically practical, and that consumers expect to find these garments in various departments, including the intimate apparel department of stores, and will, despite in which department the garment is sold, still use these garments as shorts to be seen. As early as 1984, the trade recognized the use of boxer shorts by women in the United States as shorts. An article in the January 22, 1984, New York Times, Section 6, p. 50, entitled "Boxer Shorts for Women" stated that the owner of a small underwear store which specialized in printed boxer shorts had "found customers on both sides of the Atlantic buying the shorts, . . ., for lounging at home or for the beach next summer." Again, in the New York Times, Section 1, Part 2, p.69, on February 15, 1987, an article appeared entitled "Boxer Shorts at the Beach". The article began: "The feistiest new fashion in underwear-as-outerwear is the boxer short. Even women wear them for dancing and beach cover-ups, or layer them to peek out over trousers." Also in 1987, this time in the Atlantic Business Chronicle, Section 2, p 6B, on August 10, 1987, in an article entitled "Retailers Score on Fans' Thirst for Team -12-

Paraphernalia", the article stated that: "Boxer shorts with little Bulldogs or Yellow Jackets on them sell real well, but mostly to women, who wear them as outerwear, sewing up the fly." [emphasis added]. In the New York Times, Section 12, p.54, on August 2, 1987, in "On Campus, the Look Is, Well, Studied", the article noted that among the trends on campus included "men's plaid boxer shorts worn as outerwear on women (becoming dorm wear as the weather cools)".

In 1988, the trend continued as reflected by an article in the New York Times, Section B, p.6, on July 12, 1988, titled "Boxer Shorts Meet the Sun". The article noted women's propensity to borrow clothing from their male friends and relatives. It stated: "Boxer shorts - also having a big revival with men - have found new popularity as street wear for women." The brief article ended with the following statement: "The really impeccable woman threads a few stitches inside the fly placket of the boxers, just to make sure it stays closed." [emphasis added].

In the Daily News Record, Vol. 18, No. 231, p. 28, on December 5, 1988, an article appeared headlined "Boxers: inside and out; fad for wearing wild looking boxer shorts on the outside delights retailers; Spring 89: Acting Up". Some pertinent excerpts from that article are:

Young women will wear them [referring to boxer shorts] almost anywhere but under wear, from classrooms to beaches, while young men are exposing them more discreetly by letting the boxer hang out under shorts. * * *

* * * The novelty and fancy prints and patterns on boxers lend themselves more to outerwear, and a soft, comfortable boxer short is less expensive than an outerwear short.

[emphasis added].

The article quoted Howard Cooley, president of Jockey International as saying that "'a lot of women are wearing our boxers on the beach.'" The creator of Joe Boxer, Nicholas Graham, was also quoted regarding women's use of boxer shorts. He was quoted as saying: "'A lot of girls and young people approaching yuppiehood are wearing our boxers as shorts'" and, "'... we get letters from 16-year-old girls who send pictures of themselves in class wearing our boxers.'" In the same article, a Calvin Klein executive is quoted as saying: "'Women do buy our -13-
boxers as beach cover-ups, particularly the pleated and button- front boxers.'"

In the New York Times, Section 1, Part 2, p. 34, on January 28, 1990, in an article about the underwear designer, Nicholas Graham, under the headline "Style Makers; Nicholas Graham: Underwear Designer", the writer begins by noting that while Mr. Graham began a business with the idea that men would wear boxer shorts with zany designs, "it turn[ed] out that women will wear them too, as outerwear: they account for 50 percent of the sales by Mr. Graham's company, the Joe Boxer Corporation." [emphasis added].

In the August 17, 1990, edition of the Toronto Star, Life section, p. B5, an article appeared headlined "Men's undies bought more by women." The article addressed the trend of women buying men's boxer shorts and wearing them as outerwear. It noted that as men's boxer shorts became more fashionable, "...women saw an economic opportunity in buying them as cheap, comfortable shorts." The article noted that college-aged women wear boxer shorts to lounge in and that women and girls wore them over bathing suits at the beach. The article ended with a quote from Jockey International President Howard Cooley. Mr. Cooley was quoted as saying: "'You can't in any way overlook the tremendous number of boxer shorts being bought by women as cover- ups and as sportswear.'"

An article titled "Mad about Plaid: Tartans Make a Reprise From Last Fall" which appeared in the September 17, 1992, St. Louis Post-Dispatch, Style West, P.13, in discussing the fashion revival of tartans and plaids stated: "In a borrowed-from-the- boys move, girls' are buying men's flannel plaid boxer shorts, sewing up the fly and wearing them for dorm attire." [emphasis added].

More articles from 1993 include, from The Ottawa Citizen, February 25, 1993, Fashion section, p. E5, "Women take a shine to men's boxer shorts", in which the article related that Jockey International reported "that 75 percent of all men's underwear is bought by women." The article also related that the Daily News Record was reporting that "the fashion-forward in major cities from New York to Milan are wearing underwear as club wear, workout wear and even beachwear." From The Orlando Sentinel, Orange Extra section, p I9, on December 9, 1993, an article called "Fun-to-Wear Underwear" reported on the continuing trend to wear boxer shorts as outerwear. In the article, it was stated:

But girls aren't to be left out of this latest craze in the once-so-private-now-so-public-boxer-shorts mania. They also can be found donning the latest pair of paisley, Mickey -14-

Mouse or Santa Claus boxers. The reason? Comfort! Many teen-age girls like to lounge around in their favorite pair of boxers when they're at home or just chilling with friends.

* * * Boxers also come in many materials; silk, cotton and flannel are popular picks. * * * join the many teens who have shown that boxer shorts are no longer just for under but outer wear as well.

Customs believes these cited articles serve as evidence of an ongoing trend, particularly in the age group targeted by the importer of the subject boxer shorts, especially among young women to wear boxer shorts as shorts, not as underwear. By definition, underwear is not meant to be seen when worn. See, Children's Hose, 55 Cust. Ct. 6, (1965). Customs believes that this use as shorts is well known by the trade. Although the importer in this case is an underwear company which claims the subject garment is an underwear garment sold only in intimate apparel departments, it is our belief that cotton flannel boxers, such as the ones at issue here, belong to a class of garments known as shorts, not underwear, and are principally worn in the United States by women and girls as shorts which are meant to be seen when worn and as such, are not underwear. We note that in regard to classification by principal use, the Court of International Trade stated in Group Italglass U.S.A. v. United States, Slip-op. 93-208 (Decided November 1, 1993):

The court stresses that it is the principal use of the class or kind of goods to which the imports belong and not the principal use of the specific imports that is controlling under the Rules of Interpretation.

Finally, in Regaliti, Inc. v. United States, Slip-op. 92-80 (May 21, 1992), the Court of International Trade ruled on the classification of certain garments commonly known in the United States as "leggings". In that case, the plaintiff argued that the garments at issue were designed as tights, identified on invoices as tights and advertised as tights. On that basis, the plaintiff argued the garments were tights, were used as tights and should be classified as tights. The court rejected the plaintiff's claim recognizing that "others do not usually call these items tights." The court acknowledged the principal use of the garments in the United States as pants. It noted the manner in which the garments are usually worn in the United States and stated in closing that the garments "are used for exercise or streetwear and they belong under the general knit apparel heading, 6104."

Similarly in this case, Customs believes the evidence is overwhelming that boxer shorts are principally used by women in -15-
the United States as shorts to be seen. The importer may identify the garments as underwear, but women and girls in the United States wear boxer shorts as shorts to be seen and this use is well-known throughout the fashion industry.


The garments at issue, style 45481 and 84581, are classifiable as women's woven cotton shorts in subheading 6204.62.4055, HTSUSA, textile category 348, dutiable at 17.7 percent ad valorem. You are correct in your classification of the subject garment.

This decision should be mailed by your office to the internal advice requester no later than 60 days from the date of this letter. On that date the Office of Regulations and Rulings will take steps to make the decision available to Customs personnel via the Customs Rulings Module in ACS and the public via the Diskette Subscription Service, Freedom of Information Act and other public access channels.


John Durant, Director
Commercial Rulings Division

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