CLA-2 CO:R:C:T 088192 CMR
Ms. Dorla Reppas
Mervyn's
25001 Industrial Boulevard
Hayward, Cal. 94545
RE: Ladies' boxer style shorts
Dear Ms. Reppas:
This ruling is in response to your submission of October 5,
1990, requesting classification of three styles of ladies'
undergarments. Rulings were issued by the Area Director, New
York Seaport for two of the garments. The third, a pair of
ladies' boxer shorts, style 53035, was referred to this office
for a response.
FACTS:
Style 53035 is a ladies' boxer of 100 percent polyester
woven liquid satin fabric. The fabric is somewhat sheer and is
soft and flimsy. The boxer features a fake fly front with two
covered buttons at the waist. It has a fabric front waistband
and a one-inch wide, heavy elastic back waistband with two rows
of stitching causing a shirring effect. The boxer is very short
in length.
You state in your submission that the boxers are underwear
and are sold and displayed in the lingerie area only.
Advertising was included in the submission to substantiate your
position.
ISSUE:
Is the ladies' boxer at issue. style 53035, classifiable as
underwear, nightwear or shorts?
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LAW AND ANALYSIS:
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, provided such
headings or notes do not otherwise require, according to [the
remaining GRIs taken in order]."
The most persuasive evidence before us is the garment
itself. You claim it is an undergarment designed to be worn
under dresses and sportswear. We agree that it is not outerwear
due to the nature of the fabric, however, we disagree that the
garment is principally used as an undergarment.
The one-inch wide, heavy elastic back waistband and the two
covered buttons at the front center are features which we believe
are not generally found on women's underwear bottoms. The
thickness, size and construction of the elastic waistband would
make it appear difficult to conceal under clothing as would the
covered buttons. We believe these features would interfere with
the smooth line and appearance of outerwear garments.
The advertising material submitted to support your claim of
underwear classification indicates the garment may also be used
as sleepwear. The garment is shown with other garments in
advertisements which indicate use as daywear or nightwear. For
instance, one advertisement states, "Pure elegance to enjoy
during her busy days or as silky dreamwear for her nights."
Another states, "Satin luxuries for her to enjoy day or night."
While it is generally acknowledged that consumers will purchase
and use a garment in the manner in which it is marketed, this
garment is marketed for more than one use. For the reasons
stated above, we do not believe the garment will be principally
used by women as underwear. Therefore, based on an examination
of the garment and taking into consideration the material in your
submission, we believe the garment will be principally used as
nightwear, probably in conjunction with another garment
comparable to pajamas.
HOLDING:
The submitted garment, a ladies' boxer, style 53035, is
classified as nightwear in subheading 6208.22.0000, HTSUSA, which
provides for women's or girls' nightdresses and pajamas of man-
made fibers. The garment falls within textile category 651 and
is dutiable at 17 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
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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.
Sincerely,
John Durant, Director
Commercial Rulings Division