CLA 2 RR:CR:TE 961185 SG
Gail T. Cumins, Esq.
Sharretts, Paley, Carter & Blauvelt, P.C.
67 Broad Street
New York, N.Y. 10004
RE: Request for Reconsideration of PC B86704; women’s boxer-styled garment; underwear; multi purpose garment; loungewear
Dear Ms. Cumins:
This is in response to your letter, dated July 15, 1997, on behalf of your client, Calvin Klein Underwear for Women, a subsidiary of Warnaco, requesting reconsideration of PC B86704, dated June 26, 1997, regarding the classification of a woman’s cotton boxer short under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). A sample of the garment at issue was submitted to this office for examination.
FACTS:
The subject merchandise consists of a pair of women’s boxer shorts, referenced as style number 26F040, constructed from 100 percent cotton knit fabric and features an enclosed elasticized waistband, a 4 1/2 inch long and 1 3/4 inch deep fly front, and plain hemmed leg openings. A black woven CK label is sewn on the inside center of the waistband.
In PC B86704 the woman’s cotton boxer short was classified in heading 6104, HTSUS. In your opinion classification of the shorts in heading 6104, HTSUS, as an outerwear garment is in error. You assert that the proper classification for this merchandise is in heading 6108, HTSUS, with the applicable textile quota category for underwear. In support of your position you submit that the garment at issue is part of the Calvin Klein 1997 Fall/Holiday line which consists solely of underwear and sleepwear garments and is designed by a division responsible only for the creation of such garments. A copy of the promotional material for this line is submitted. You advise that no marketing or sales information is available for this style.
ISSUE:
What is the proper classification for the subject merchandise?
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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”.
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.
In support of your claim that these garments are women’s underwear you cite NY A80725, dated March 29, 1996, where Customs found that a “boxer style short with an enclosed elastic waistband, mock fly front and hemmed leg openings” was classified as women’s underwear in heading 6108.91.0005, HTSUS. You state that this ruling is in accord with New York’s consistent classification of similar garments as women’s underwear (NY A82672 of April 18, 1996, NY 815862 of October 23, 1995, and NY 815330 of October 18, 1995).
We have reviewed these rulings, and have determined that in each of these cases, both the physical appearance of the garment and the fabric from which it is constructed (finely knit pointelle fabric in NYA80725, ribbed fabric with exposed waistband in NY A82672, and lightweight finely knit fabric in NY 815330 and NY 815862) is that of undergarments. These cases would be precedent only if the appearance and construction of the garment at issue is indicative of underwear. It is our view that the fabric of the garment is not one usually associated with underwear nor is it exclusively limited for that purpose. Knit cotton fabric is acceptable as an outwear fabric. We note also that the fabric is not too light-weight or sheer for the garment to be worn as outwear. Accordingly, these cases are not precedent for the garment here at issue.
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
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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 C.I.T. 407 (May 21, 1992).
The copy submitted to this office is neither persuasive nor indicative that the submitted merchandise is representative of underwear garments. Many of the garments in your submission are clearly non underwear garments. These garments range from knit pants, shorts, T shirts, nightshirts, robes, rompers, chemises, and pajamas. These materials do not make any statement in support of a classification as underwear for the subject boxer shorts.
You assert that the Calvin Klein line which this garment is part of consists solely of underwear and sleepwear garments and is designed by a division responsible only for the creation of such garments. 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 Calvin Klein has manufactured underwear lines it does not have an “established reputation” as solely or principally an underwear company.
Heading 6104, HTSUSA, provides for, among other things, women's shorts. Shorts in heading 6104, HTSUSA, is an eo nomine provision with no limiting language regarding use. Thus, women's 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 4
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.
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, PC B86704 correctly classified the women’s boxer short in heading 6104, HTSUS.
HOLDING:
The subject women’s boxer short, referenced style 26F040, was correctly classified in PC B86704 in subheading 6104.62.2030, 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: shorts: women’s. The applicable general column one rate of duty is 15.8 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
Commercial Rulings Division