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HQ 960391





April 22, 1997
CLA-2 RR:TC:TE 960391 jb

CATEGORY: CLASSIFICATION

TARIFF NO.: 6204.62.4055; 6204.62.4065

Ronald W. Gerdes, Esq.
Sandler Travis & Rosenberg, P.A.
1341 G Street, N.W.
Washington, D.C. 20005-3105

RE: Request for Reconsideration of NY B81713; women's and children's garments; non-underwear; multi-purpose garment; loungewear

Dear Mr. Gerdes:

This is in response to your letter, dated April 9, 1997, on behalf of your client, Jockey International Inc., requesting both a reconsideration of New York Ruling Letter (NY) B81713, dated February 24, 1997, regarding the classification of a woman's flannel boxer short, and classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) for a pair of girl's flannel boxer shorts. Samples of the garments at issue as well as additional samples from the Jockey "At Home Wear" line were submitted to this office for examination.

FACTS:

The subject merchandise consists of a pair of women's and girls' boxer shorts. The women's boxer short, referenced style number 1440, is constructed from 100 percent cotton woven flannel fabric and features an exposed elasticized waistband, one button mock fly, and plain hemmed leg openings. A hang tag on the shorts refers to the garments as "At Home Wear". The girls' boxer short, referenced style number 1463, is virtually identical to the women's boxer short except that it comes in children's sizes and the hang tag on the shorts states "Boxer Jockey for Girls".

In NY B81713 the woman's flannel boxer short was classified in heading 6204, HTSUS. In your opinion classification of the shorts in heading 6204, HTSUS, as an outerwear garment is in error. You assert that the proper classification for this merchandise is in heading 6208, HTSUS, with the applicable textile quota category for underwear. Similarly, you state that the girl's flannel boxer short should also be classified in heading 6208, HTSUS. In support of your position you submit the following:

1. The characteristics of the garments fit within those which Customs has historically found to be underwear; 2. Jockey sales catalogue and advertising material; 3. Jockey's worldwide reputation as an "underwear company"; 4. The merchandise is sold through underwear retailers and underwear departments of department stores.

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 rules 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.

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, Slip Op. 92-80.

You state that "the characteristics of the garments fit within those which Customs has historically found to be underwear". 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.

The catalogue and advertising material submitted to this office are neither persuasive nor indicative that the submitted merchandise is representative of underwear garments. At page 11 of the catalogue, titled "At Home Wear", there are several illustrations of a variety of garments. Although many of these garments are the traditional women's underwear, that is, full cut brief, french cut brief and string bikini, there are additional garments which are clearly non-underwear garments. These garments range from knit shorts, T-shirt, seasonal pant and a sleep slip. Similarly, on pages 12-13, titled "Jockey for Girls", there are several non-traditional underwear garments, that is, Knit Short, Legging, Tank Slip, and Long Sleeve Shirt. Additionally, although the advertising material submitted to this office is clearly demonstrative of underwear garments, with one ad showing a close up of a woman's thigh dressed in a high cut bikini underwear and in another ad, a woman reclining on a bed wearing a hipster pant and matching crop top, these advertisements do not make any statement in support of a classification as underwear for the subject boxer shorts. In fact, the hang tag on the women's boxer shorts strongly implies that this is a multiple use garment intended for comfort and lounging. As such, the boxer shorts may be worn inside and outside the home.

You assert that Jockey's established reputation as an underwear company furthers your argument that the subject garments are classified as underwear. 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 and use to indicate otherwise, we are unwilling to classify these garments as underwear based on the information you have provided.
Furthermore, although we do not dispute the claim that Jockey has an "established reputation" as an underwear company, it is also true that Jockey has grown into other garment lines. This is clearly evidenced through two articles found in Women's Wear Daily, dated as early as 1984 and 1988, respectively:

In an article titled "Men's look prompting rush of new directions in lingerie", it states,
"Jockey has introduced for spring a line of sleepwear and loungewear produced and sold by Wilker Bros., with looks such as shirts and pajamas and tailored robes bearing the men's wear influence."

In an article titled "Jockey goes sporty; Jockey International's Jockey for Her line", it states, "Jockey International, Inc., has introduced two new styles to its
Jockey For Her intimate apparel collection. Unlike its existing product line, which focuses on intimate fashions, the new group is more for sleeping, exercise or loungewear, according to a company spokeswoman".

The fact that the subject merchandise will be displayed in the intimate apparel department of department stores does not conclusively prove that the garments are underwear. Garments 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. Customs notes that while the use of flannel fabric has traditionally been associated with sleepwear and underwear, it is not limited for this purpose. Flannel fabric has also been found to be a commonplace outerwear fabric, as is evidenced by its popular use in flannel shirts.

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 garment, the type of fabric and the design and construction of the garment make it likely that women will wear this garment as either outerwear shorts or for lounging in the comfort of one's home. In addition, and as has been explicitly discussed, there is insufficient proof submitted by you, in the way of marketing and advertising to refute the presumption that the garment is an outerwear garment and principally used as such. The same can be said of the girls' boxer shorts. In the opinion of the National Import Specialist for children's garments, girls neither wear these boxer style shorts as underwear nor is there any fashion trend which would dictate such a principal use. These boxer style garments are usually worn by girls as sleepwear bottoms over underwear garments or as loungewear.

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. Thus, NY B81713 correctly classified the women's boxer short in heading 6204. Similarly, the proper classification for the girls' boxer short is in heading 6204, HTSUS.

HOLDING:

The subject women's boxer short, referenced style 1440, was correctly classified in NY B81713 in 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): trousers, bib and brace overalls, breeches and shorts: of cotton: other: other: other; shorts: women's. The applicable rate of duty is 17.4 percent ad valorem and the quota category is 348.

The subject girls' boxer short is classifiable in subheading 6204.62.4065, 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 cotton: other: other: other; shorts: girls': other. The applicable rate of duty is 17.4 percent ad valorem and the quota 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 negotiations and changes, we suggest that your client check, close to the time of shipment, the Status Report On Current Import Quotas (Restraint Levels), an issuance of the U.S. Customs Service, which is updated weekly and is available at the 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 the local Customs office prior to importing the merchandise to determine the current status of any import restraints or requirements.

Sincerely,

John Durant, Director

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