CLA-2 RR:TC:TE 960346 jb
Port Director
U.S. Customs Service
300 S. Ferry Street
Terminal Island, CA 90731
RE: Decision on Application for Further Review of Protest No.
2704-97-100847; children's garments; nonunderwear; discrepancy
between classification and textile category
Dear Madam:
This is a decision on application for further review of a
protest timely filed on behalf of Obion Company, division of
Salant Corporation, on March 4, 1997, against your decision
regarding the classification of certain children's knit lower
body garments and issuance of Notices to Redeliver said
merchandise. The notices of redelivery were issued on January
23, 1997. Samples of the subject garments were submitted to this
office for examination.
FACTS:
The merchandise that is the subject of the present protest
consists of three styles of girls' boxer shorts made of 100
percent knit cotton fabric. Two of the boxer shorts are
virtually identical, differing only in print and size. These
boxer shorts are sized S (7-8) and L (14-16) and feature a one
and one half inch wide exposed elasticized waistband, a mock fly
front and hemmed leg openings. The boxer shorts sized "S" come
in a heart print and the size "L" come in a teddy bear print.
The third pair of boxer shorts, a bunny print, is sized 2T and
features a ribbed elasticized waistband which is exposed on the
inside of the waistband, a mock fly front and hemmed leg
openings.
This merchandise was classified in subheading 6108.91.0040,
Harmonized Tariff Schedule of the United States Annotated
(HTSUSA), which provides for women's or girls' slips, petticoats,
briefs, panties, nightdresses, pajamas, negligees, bathrobes,
dressing gowns and similar articles, knitted or crocheted: other:
of cotton: other: girls', with corresponding quota category 350.
The Protestant claims this classification is in error and that
the proper classification for this merchandise is in subheading
6108.91.0025, HTSUSA, which provides for women's or girls' slips,
petticoats, briefs, panties, nightdresses, pajamas, negligees,
bathrobes, dressing gowns and similar articles, knitted or
crocheted: other: of cotton; underwear: girls', with
corresponding quota category 352.
The Protestant claims that classification in subheading
6108.91.0025, HTSUSA, is correct for the following reasons:
1. The subject merchandise is identical to the garment
constructed of cotton flannel which was the subject of
New York Ruling (NY) 809762, dated June 2, 1995 (a sample of
this garment, a pair of cotton flannel boxer styled
shorts featuring a one and a half inch wide exposed
elasticized waistband, a mock fly front and hemmed leg
openings was submitted to this office
for examination);
2. The subject merchandise does not correspond to the
guidelines for textile category 350 set forth in the
Guidelines for the Reporting of Imported Products in Various
Textile and Apparel Categories, (Guidelines),CIE
13/88;
3. The subject boxer shorts are properly classifiable as
underwear pursuant to the guidelines set
forth in numerous Customs rulings, specifically, HQ 951754,
dated June 25, 1992 and Inner Secrets/Secretly Yours,
Inc. v. United States, Slip Op. 95-60 (CIT April 10,
1995);
4. Classification in textile category 352 is further
supported by rulings NY 815530, dated October 18,
1995 and NY 815862, dated October 23, 1995, and by the fact
that Protestant cannot find any rulings
issued by Customs which hold women's or girls' knit
boxer shorts to be classified under textile category 350;
and,
5. Advertisement/marketing.
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 NY 809762 a pair of girl's woven cotton flannel boxer
shorts were classified in subheading 6208.91.1020, HTSUSA. That
classification was stated to provide for "women's or girls'
singlets and other undershirts, slips, petticoats, briefs,
panties, night dresses, pajamas, negligees, bathrobes, dressing
gowns and similar articles: nightdresses and pajamas: of cotton,
other: girls'". The textile category designation was stated as
352 and the duty was stated as 8.4 percent ad valorem. A review
of the tariff reveals that subheading 6208.91.1020, HTSUSA,
actually provides for, women's or girls' singlets and other
undershirts, slips, petticoats, briefs, panties, nightdresses,
pajamas, negligees, bathrobes, dressing gowns and similar
articles: other: of cotton: bathrobes, dressing gowns and similar
articles; girls'. The actual textile category designation for
this provision is 350 and the duty is 8.2 percent ad valorem.
It is clear that NY 809762 is flawed due to the ambiguities
raised in regard to the tariff classification and the
corresponding provision. When the National Import Specialist
(NIS) for this commodity was consulted regarding this garment he
confirmed that there had been a typographical error with regard
to the tariff classification number. The proper tariff
classification for this merchandise should have been subheading
6208.91.3020, 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: other: of cotton: other; girls', with
corresponding textile category designation 352 and a duty of 11.7
percent ad valorem. In the opinion of the NIS, the woven flannel
boxer shorts are similar to sleepwear. However, as there is no
separate statistical breakout for sleepwear bottoms ( that is, a
sleepwear garment that is not a nightdress or a pajama) in
heading 6208, HTSUS, classification devolves to the "other"
category, with corresponding textile category 352 . As was
stated in HQ 956239, dated October 4, 1994, discussing the
classification of women's pajama separates:
In both HRL 088635 and 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.
Accordingly, this office is in the process of modifying NY 809762
to reflect proper classification of the merchandise in subheading
6208.91.3020, HTSUSA.
Heading 6108, HTSUSA, provides for women's or girls' slips,
petticoats, briefs, panties, nightdresses, pajamas, negligees,
bathrobes, dressing gowns and similar articles, knitted or
crocheted. Unlike heading 6108, HTSUS, which covers knitted or
crocheted garments, heading 6208, HTSUS, the provision for woven
garments, does not have separate subheadings for underwear and
sleepwear. Accordingly, anything that does not squarely fit into
the garment types provided for, that is, slips and petticoats,
nightdresses and pajamas, or bathrobes, dressing gowns and
similar articles, will be placed in the "other, other" basket
category. The textile category that corresponds to this
classification is 352. The Guidelines state that textile
category 350 is designated for robes and dressing gowns and that
textile category 352 is designated for underwear. Thus, although
the textile category in both the case of NY 809762 (subheading
6208.91.3020, HTSUSA, and textile category 352) and the present
protest (subheading 6108.91.0040, and textile category 350)
differ for this merchandise, classification under the HTSUSA
takes precedence over category determination. Therefore,
regardless of the impact on the textile category, the
classification must stand.
Although the woven women's boxer style shorts that were the
subject of Inner Secrets was determined by the court to be
classified in subheading 6208.91.3010, with a 352 textile
category, there are several distinctions that can be made between
the subject garments and the garment at issue in Inner Secrets.
The court in Inner Secrets refers to the guidelines that were
erroneously applied to the women's boxer style shorts in HQ
951754 only because the plaintiff had relied on those guidelines
to his detriment, and not because the guidelines for men's boxer
shorts are to be interchangeably used with women's boxer style
shorts. Subsequently, HQ 951754 was modified by HQ 957133, dated
August 14, 1995 to reflect Customs position that the guidelines
for men's boxer shorts are not to be used for the classification
of women's boxer shorts. Furthermore, HQ 951754 addressed
classification of the women's boxer shorts in either heading
6204, HTSUS, as outerwear shorts or heading 6208, HTSUS, as
sleepwear shorts. The fact that subheading 6208.91.1010, HTSUSA,
which provides for "similar to bathrobes and dressing gowns" was
not discussed in HQ 951754 has no bearing on this case. As we
have already discussed, there is a discrepancy between heading
6208, HTSUS, and heading 6108, HTSUS, as far as what, if any,
provisions are present for underwear and sleepwear. To
reiterate, heading 6208 does not provide any separate provision
for underwear, while heading 6108, HTSUS, does so provide. Thus,
the fact that in Customs opinion the subject garments are
classified in subheading 6108.91.0040, HTSUSA, with textile
category designation 350, does not mean that the garment is a
bathrobe or dressing gown. It is the classification which
determines the textile category- not the other way around.
The appearance of the women's style boxer shorts in Inner
Secrets is not identical to the present children's boxer style
shorts in that in the former, the seams which are sewn
horizontally across the fly, dividing the fly opening into
thirds, was decided by the court to be comparable to a functional
fly (and not a mock fly as is the case in the present shorts) and
thus the garments were stated to be presumptively underwear.
The court also notes in its decision that much emphasis is placed
on the advertising and marketing of the women's woven garment
which supports the claim that the garments are classifiable in
subheading 6208.91.3010, HTSUSA, as underwear. In furtherance of
this claim it was stated that women's use of the boxer style
short as underwear is practical and is in response to recent
fashion trends. We cannot state with the same certainty that the
present children's boxer shorts are worn as underwear. 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.
Particularly, in regard to the boxer shorts sized 2T, a toddler
size, we question why a toddler, who is not yet using underwear
and is still in diapers, would have use for such an "underwear"
garment to be placed over the diaper.
The Protestant makes reference to NY 815530 and NY 815862 as
proof that the present garments should be classified under
textile category 352. As we have already stated, classification
takes precedence over the textile quota designation.
Furthermore, what might be appropriate use of a garment for
women, based on "fashion trends", might not be appropriate for
children. What is critical to the classification is the
principal use of these garments and not some fugitive use. The
Protestant also states that there are no rulings issued by
Customs which hold women's or girls' knit boxer shorts to be
classified under textile category 350. This statement is in
error. We direct Protestant to HQ 952567, dated January 6, 1993,
which classified a children's lower body garment described as
being made of finely knit cotton jersey fabric and featuring an
"elasticized waist and short legs with rib knit capping at the
leg openings", sized 2Y-4Y, in subheading 6108.91.0040, in
textile category 350.
Finally, Protestant submitted documentation in the way of
advertisement for the subject garments. The advertisement states
"Change Daily"- an instruction which the Protestant states
applies only to underwear not outerwear or loungewear- "Joe Boxer
underwear, sleepwear and long underwear for Boys, Girls and
Toddlers". The Protestant also states that the boxer shorts are
sold to the underwear/sleepwear buyer of the retailer and
merchandised and sold in the children's underwear/sleepwear
department along with underpants, undershirts and socks. An
article from the February 7, 1997 issue of DNR was also submitted
which Protestant claims evidences that "the entire fashion appeal
to girls of the Joe Boxer cotton knit boxer shorts is to copy the
Joe Boxer underwear which has become so popular with boys". In
regard to the "Change Daily" advertisement, it is the opinion of
this office that the advertisement only raises further
ambiguities about the subject garments. In contrast to the
Protestant's belief that "change daily" are instructions
exclusive to underwear, we find that the same can be said of
outerwear or loungewear. Additionally, the advertisement shows
each day of the week represented by a child (or children) wearing
both an upper and a lower garment. In some cases, the child is
also wearing sneakers and a hat. This advertisement does not
provide conclusive proof that the lower garments are underwear
and are marketed solely as such, instead this gives further
weight to the argument that these are not underwear garments;
this is also bolstered by the fact that these garments are sold
in the underwear/sleepwear department. Lastly, the article
submitted to this office never explicitly mentions the appeal of
these garments as underwear to girls- the article is merely
illustrative of the general popularity of boxer shorts in the
market.
We also note that in response to a question regarding the
availability of matching tops with the subject boxer shorts we
were told that while one of the prints has a T-shirt which
"coordinates" with one of the bottoms, "most do not" and they are
not sold together or packaged together. Even if the Protestant
states that these coordinated tops are neither sold nor packaged
together with the bottoms, it is not hard to imagine that when
displayed in the underwear/sleepwear department of the stores,
these upper and lower garments will be within close proximity of
one another, suggesting to the consumer that they can or are to
be worn together.
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 this garment is not
as an underwear garment. Thus, the proper classification for
this merchandise is in subheading 6108.91.0040, HTSUSA.
HOLDING:
The subject merchandise, was correctly classified in
subheading 6108.91.0040, HTSUSA, which provides for women's or
girls' slips, petticoats, briefs, panties, nightdresses, pajamas,
negligees, bathrobes, dressing gowns and similar articles,
knitted or crocheted: other: of cotton: other: girls'. The
applicable rate of duty is 8.8 percent ad valorem and the quota
category is 350.
The protest should be denied in full and a copy of this
ruling should be appended to the CF 19 Notice of Action to
satisfy the notice requirement of section 174.30(a) Customs
Regulations.
In accordance with Section 3(A)(11)(b) of Customs Directive
099 3550-065, dated August 4, 1993, Subject: Revised Protest
Directive, this decision should be mailed by your office to the
Protestant no later than 60 days from the date of this letter.
Any reliquidation of the entry in accordance with the decision
must be accomplished prior to mailing of the decision. Sixty
days
from the date of the decision 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.
Sincerely,
John Durant, Director
Commercial Rulings Division