CLA-2 R:C:T 957133 jb
Stephen M. Zelman, Esq.
845 Third Avenue, 17th Floor
New York, NY 10022
RE: Modification of HQ 951754; incorrect use of criteria used
in determining whether women's shorts are a non-underwear
garment; criteria are for men's boxer style garments only; for
women's shorts, heading 6204, HTSUSA, is an eo nomine provision
with no limiting language regarding use
Dear Mr. Zelman:
On June 25, 1992, this office issued to you, on behalf of
your client, Craftex Creations, Inc., HQ 951754, regarding the
classification of certain women's woven cotton flannel boxer
shorts. We have had occasion to review that ruling and have
determined that it is in error, in part, as regards to the
analysis. The outcome (for quota and visa purposes) remains
unchanged.
Pursuant to section 625, Tariff Act of 1930 (19 U.S.C.
1625), as amended by section 623 of Title VI (Customs
Modernization) of the North American Free Trade Agreement
Implementation Act, Pub. L. 103-82, 107 Stat. 2057, 2186 (1993)
(hereinafter section 625), notice of the proposed modification of
HQ 951754 was published July 12, 1995, in the CUSTOMS BULLETIN,
Volume 29, Number 28.
FACTS:
The merchandise in question, style number 12061D, is a pair
of women's boxer-style shorts constructed from woven 100 percent
cotton flannel yarn-dyed plaid fabric. The pull-on shorts
feature a fully elasticized waist with a turned waistband, fly
front opening secured by a single visible button, single center
back seam and hemmed mid-thigh length legs. In the analysis, HQ
951754 referred to HQ 087940, dated September 16, 1991, which
stated seven characteristics as a guideline to determine whether
or not a men's boxer-style garment can be considered underwear.
ISSUE:
Whether the use of the guidelines set out in HQ 087940 was
proper when discussing a women's boxer-style garment?
LAW AND ANALYSIS:
Classification of goods under the HTSUSA is governed by the
General Rules of Interpretation (GRI). GRI 1 provides that
classification will be determined according to the terms of the
headings and any relative section or chapter notes. Where goods
cannot be classified solely on the basis of GRI 1, the remaining
GRI will be applied, taken in order.
HQ 951754 referred to HQ 087940, wherein Customs dealt with
the tariff classification of a pair of boxer shorts claimed to be
men's underwear. That ruling listed seven features considered
indicative of non-underwear garments. Though HQ 087940 created
objective criteria to be used as an aid in determining if certain
boxer style garments were non-underwear garments, the criteria
were created for men's boxer style garments, they were not
drafted with women's garments in mind. This is further evidenced
from the statement in the ruling that "boxer shorts are not worn
by women as underwear..." This belief has been restated by
Customs in several rulings. See, HQ 087922, dated October 2,
1991; HQ 087942 , dated October 2, 1991; and, NYRL 894070, dated
February 18, 1994.
Thus, the use of the criteria set out in HQ 087940 in
analyzing the classification of a woman's pair of boxer shorts in
HQ 951754 was in error and should be disregarded. However,
additional factors such as marketing and advertising, as well as
the garment itself, were utilized in reaching the classification
decision in HQ 951754. Those portions of the analysis remain
unchanged. By this modification Customs would add the following
to the analysis:
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).
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 garment, the type of fabric and the
design and construction of the garment make it likely that women
will wear this garment as outerwear shorts. 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.
Accordingly, based on the arguments put forth above, the
garment is classified as women's shorts in heading 6204, HTSUSA.
HOLDING:
The women's boxer-style shorts, referenced Style number
12061D, are classified in subheading 6204.62.4055, HTSUSA, which
provides for, inter alia, women's shorts. There is no change for
quota and visa purposes.
In accordance with section 625, this ruling will become
effective 60 days after its publication in the CUSTOMS BULLETIN.
Publication of rulings or decisions pursuant to section 625 does
not constitute a change of practice or position in accordance
with section 177.10(c)(1), Customs Regulations (19 CFR
177.10(c)(1)).
Sincerely,
John Durant, Director
Commercial Rulings Division