HQ 088192

February 20, 1991

CLA-2 CO:R:C:T 088192 CMR

CATEGORY: Classification

TARIFF NO.: 6208.22.0000

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