CLA-2 RR:TC:TE 960391 jb
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
Tariff Classification Appeals
Division