HQ 960391

April 22, 1997

CLA-2 RR:TC:TE 960391 jb

CATEGORY: Classification

TARIFF NO.: 6204.62.4055; 6204.62.4065

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