CLA-2 CO:R:C:T 957068 CMR
U.S. Customs Service
Area Director, JFK
Building #77, JFK Airport
Room 228
Jamaica, New York 11430
RE: Internal Advice Request; classification of certain women's
woven cotton flannel boxer shorts
Dear Mr. Mattina:
This ruling is in response to an internal advice request
filed at JFK Airport by Ross & Hardies on behalf of their client,
Inner Secrets/Secretly Yours, Inc.. At dispute is the
classification of certain women's cotton flannel boxer shorts.
Your port has issued redelivery notices for two entries and has
rejected other entries of this merchandise for failure to present
the proper textile visa. The importer claims the garments are
properly classified as women's underwear of subheading
6208.91.3010, Harmonized Tariff Schedule of the United States
Annotated (HTSUSA), and subject to textile category 352. Customs
at JFK believes the subject garments are properly classified as
women's shorts of subheading 6204.62.4055, HTSUSA, and subject to
textile category 348.
FACTS:
The garments at issue are women's woven 100 percent cotton
flannel boxer shorts. A sample, style 45481, was submitted along
with a matching brassiere and panty made of the same flannel
fabric. The submitted boxer sample has the basic boxer shape, an
elasticized waist with the elastic exposed on the interior of the
garment, a mock fly front that has been stitched across
horizontally at two points (essentially dividing the fly into
thirds and precluding it from having any functional nature), and
two buttons sewn on the waist in the center of the front. In
addition, it is submitted that the flannel fabric weighs
approximately 3.9 ounces per square yard and the side length of
the submitted size medium (waist 27-28 inches) is less than 17
inches. A second boxer, style 84581, was also received. The
garments are imported from Hong Kong. -2-
The importer submits that Inner Secrets/Secretly Yours
markets only underwear to underwear departments and that its
licensing agreement precludes the importer from using the mark
"NO EXCUSES", under which the boxers are sold, for anything other
than "bras, panties, foundation garments, underwear, daywear and
all other intimate apparel products for ladies and teens". The
boxers are displayed in the underwear department of stores
alongside the matching bras and panties. Photographs were
submitted showing the boxers so displayed. Letters from Walmart
and Kmart buyers have been submitted to confirm that the cotton
flannel boxers are sold and marketed as underwear in the intimate
apparel departments of these stores. Advertising material was
also submitted to substantiate the claim that the garments at
issue, and other virtually identical garments, are advertised as
underwear. These advertisements include:
An advertisement by Walmart of the flannel bra and panties
(the boxers were not included in the advertisement). The
garments were displayed on a page which included
advertisements for other underwear garments, i.e., panties
and bras.
An advertisement by Ames showing models wearing in one case,
a bra and panties, and in the other, a bra and boxers. The
garments were advertised as "Bra and Panty Coordinates",
"Soft cup or underwire bras, matching panties or boxers.
* * *
An advertisement by Target showing models wearing in one
case, a plaid underwire bra and, in the other case, a plaid
bustier. Each model also wore a matching boxer short.
However, the importer also submitted two advertisements from
Victoria's Secret catalogues showing models wearing bras with
matching boxers. One advertisement reads:
Perfect this time of year: red plaid . . . cotton flannels
to lounge in. * * * [emphasis added].
The other reads:
Spirited cotton loungewear: Our boxer pyjama set and
matching bra in a navy . . . and white tattersall plaid.
* * *
The importer's counsel argues that HRL 951754 of June 25,
1992, established objective criteria for determining whether
women's boxer shorts should be classified as underwear. Counsel
submits that the subject boxers meet the criteria for
classification as underwear.
-3-
In their letter of September 23, 1994, the importer's
counsel rejected consideration of their client's garment as
sleepwear or loungewear, maintaining that the garment is
underwear. In a meeting at Customs Headquarters, the importer
informed Customs that the target market for the boxer shorts is
women from the teens to mid-twenties.
ISSUE:
Did HRL 951754 of June 25, 1992, establish objective
criteria for classifying women's boxer shorts as underwear and,
do the subject boxers meet those criteria for underwear?
Are the women's cotton flannel boxer shorts at issue
classifiable as underwear of heading 6208, HTSUSA, as claimed, or
as shorts of heading 6204, HTSUSA, as classified by Customs at
JFK Airport?
LAW AND ANALYSIS:
Before analyzing the classification of the subject garment
by the traditional methods of tariff classification, we will
examine the claim which has been put forth that HRL 951754 of
June 25, 1992, established objective criteria for classifying
women's boxer shorts as underwear garments.
In HRL 087940 of September 16, 1991, Customs dealt with the
tariff classification of a pair of boxer shorts claimed to be
men's underwear. In the ruling, Customs noted changing fashion
and the growing popularity of wearing boxer shorts as outerwear
rather than solely as underwear. In addition in the ruling,
classification in heading 6208, HTSUSA, was summarily dismissed
by noting, "boxer shorts are not worn by women as underwear...".
The ruling then lists features considered indicative of non-
underwear garments.
1. Fabric weight greater than 4.2 ounces per square yard;
2. An enclosed or turned over waistband;
3. Lack of a fly or lining;
4. A single leg opening greater than the relaxed waist;
5. The presence of belt loops, inner or outer pockets or
pouches;
6. Multiple snaps at the fly opening (not including the
waistband), or button or zipper fly closures; [closed
parentheses missing in original] -4-
7. The side length of a size medium should not exceed 17
inches.
After listing the criteria, the ruling states:
Although no one feature is determinative, the presence of
more than one of the above features gives rise to the
presumption that a boxer style garment is either outerwear
or a unisex garment rather than men's underwear. This
presumption is rebuttable, however, and the above criteria
will be evaluated in conjunction with advertising and
marketing information. In addition, size specifications
will be considered and compared to those supplied by
domestic underwear manufacturers. [emphasis added;
reference to size specifications and domestic manufacturers
is in regard to men's underwear]
Clearly, HRL 087940 created objective criteria to be used as
an aid in determining if men's boxer style garments were non-
underwear garments. They were not drafted with women's garments
in mind as is evident 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, HRL
087922 of October 2, 1991; HRL 087942 of October 2, 1991; and,
NYRL 894070 of February 18, 1994.
Customs erred in utilizing the criteria set forth in HRL
087940 to determine the classification of a pair of women's
flannel boxer-style shorts in HRL 951754 of June 25, 1992. In
that ruling, the flannel shorts at issue were found to be
classified in heading 6204, HTSUSA, as shorts, as the shorts were
viewed by Customs as a multiple use garment and not principally
used as sleepwear (the claimed classification). Classification
as underwear was not an issue in that ruling.
The importer's counsel argue that their client relied to his
detriment on the analysis in HRL 951754; specifically, on the use
of the seven criteria listed above. Therefore, we will look at
the garment at issue in relation to the seven criteria. However,
Customs maintains the position that these criteria were developed
solely to help distinguish men's underwear boxer shorts from
outerwear boxer shorts. Use of these criteria in regard to
women's garments is an error and HRL 951754 will be modified to
reflect that view.
While counsel for the importer argues that the subject
garment only has one feature of the seven listed criteria and so,
in their view, is presumed to be underwear, after examining the
submitted garment, we find that it possesses two of the listed
features: a single leg opening greater than the relaxed waist
and, no fly. Counsel admits these features on page 2 of their -5-
September 23, 1994 letter. The garment has a mock fly which, in
essence, means it has no fly. The fly is not functional as it
has been sewn at two points apparently in order to help the
fabric lie flat. While women may have no need for a
fly; the lack of a fly is one of the listed criteria. As stated
in HRL 951754, "[t]he presence of more than one of these features
gives rise to a rebuttable presumption that a garment is
outerwear." As the subject garment has two of the listed
features, the rebuttable presumption is that the garment is
outerwear. See, HRL 956874 of September 19, 1994, in which the
impracticality of a fly was considered supporting evidence that a
garment was not underwear.
Since Customs has applied the seven criteria upon which the
importer claims reliance and based on those criteria we find
there is a rebuttable presumption that the garment is outerwear,
we can only assume that the importer misread the criteria.
Nevertheless, as we have already pointed out, these criteria were
not devised with women's garments in mind and were never intended
for use in determining when women's boxer shorts are underwear,
sleepwear or outerwear.
As the criteria upon which the importer relied leads to a
presumption that the subject garment is outerwear, Customs finds
no basis for a detrimental reliance claim. In addition, Customs
rejects the use of those criteria for determining the
classification of women's boxer shorts. We will decide the
classification of the subject garment based upon the traditional
methods of classification, i.e., resort to the terms of the
tariff and the basic tenets of classification.
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 and, provided
such headings or notes do not otherwise require, according to
[the remaining GRIs taken in order]."
The headings at issue are heading 6208, 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; and,
heading 6204, HTSUSA, which provides for, inter alia, women's or
girls' shorts.
The Explanatory Notes (EN) to the Harmonized Commodity
Description and Coding System, the official interpretation of the
Harmonized System at the international level, offers little
assistance in this case. The EN for heading 6208, states in
relevant part:
-6-
This heading covers underclothing for women or girls'
(singlets and other vests, slips, petticoats, briefs,
panties and similar articles), not knitted or crocheted.
The provisions of the EN to heading 6103, which apply mutatis
mutandis to the articles of headings 6104 and 6204, state in
relevant part:
(F) "Shorts" means "trousers" which do not cover the knee.
And, trousers are defined in the same note as:
(D) "Trousers" means garments which envelop each leg
separately, covering the knees and usually reaching down to
or below the ankles; these garments usually stop at the
waist; the presence of braces does not cause these garments
to lose the essential character of trousers.
GRI 3 provides, in part:
When by application of rule 2(b) or for any other reason,
goods are, prima facie, classifiable under two or more
headings, classification shall be effected as follows:
(a) The heading which provides the most specific
description shall be preferred to headings providing a
more general description. * * *
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. Therefore,
women's shorts of heading 6204, HTSUSA, 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).
Customs believes, heading 6208, HTSUSA, provides a more
specific description, i.e., it provides for named articles which
are identifiable by their use and may be characterized as
"intimate apparel". They are garments which are recognized as
either underwear (the singlets and other undershirts, slips,
petticoats, briefs and panties), sleepwear (the nightdresses,
pajamas and negligees), or garments normally worn indoors in the
presence of family or close friends (the negligees, bathrobes and
dressing gowns). See, HRL 956202 of September 29, 1994. -7-
When confronted with two possible classifications for an
article, a general rule of tariff construction is that in the
absence of legislative intent to the contrary, a good described
by a use provision and an eo nomine provision is generally more
specifically provided for under the use provision. United States
v. Siemens America, Inc., 68 CCPA 62, 70, C.A.D. 1266 (1981).
Therefore, we will first determine if the garment at issue is
classifiable in the more specific provision, heading 6208,
HTSUSA.
The importer claims the boxer shorts at issue are women's
underwear of heading 6208, HTSUSA. The garment must therefore
fall within the definition of briefs or panties or be a similar
article, i.e., principally used as women's underwear. There
appears to be no dispute that the boxer shorts are not within the
definition of or commonly recognized as briefs or panties. It is
well-established that tariff terms are construed in accordance
with their common and commercial meanings and that the common
meaning of a tariff term is a question of law. Toyota Motor
Sales, U.S.A., Inc. v. united States, 7 CIT 178, 182, 585 F.
Supp. 649 (1984), aff'd, 753 F.2d 1061 (Fed. Cir. 1985). Thus,
we must determine if the boxer shorts are classifiable as a
similar article to briefs or panties. To be a similar article,
the boxer shorts must be principally used by women as underwear.
As noted above, the Explanatory Notes give us some guidance
regarding scope of heading 6208, HTSUSA, as regards women's
underwear. Further guidance may be found in dictionaries. For
instance, "underwear" is defined in Webster's II New Riverside
University Dictionary (1984), at 1259, as: "Clothing worn under
the outer clothes and next to the skin." From the same source,
"underclothes" are defined, at 1257, as: "Clothes worn next to
the skin: UNDERWEAR." In Children's Hose Inc. v. United States,
55 Cust. Ct. 6, 8, C.D. 2547 (1965), the court examined the term
"underwear" and appeared to conclude that underwear is a garment
of an intimate nature which is worn under an outer garment and
not meant to be seen when worn.
Classification based upon use is governed by the language of
Additional U.S. Rule of Interpretation 1(a) which requires that:
In the absence of special language or context which
otherwise requires--
a tariff classification controlled by use (other than
actual use) is to be determined in accordance with the
use in the United States at, or immediately prior to,
the date of importation, of goods of that class or kind
to which the imported goods belong, and the controlling
use is the principal use. [emphasis added]
-8-
Thus, in order to be classified as women's underwear of heading
6208, HTSUSA, the boxer shorts at issue must belong to a class or
kind of goods for which the principal use is as women's
underwear, i.e., the principal use must be for wear next to the
skin and under other clothing by women in the United States as
underwear. That use must be the principal use at, or immediately
prior to, the time of importation.
In United States v. Carborundum Co., 63 CCPA 98, C.A.D.
1172, 536 F.2d 373 (CAFC) Cert. den., Carborundum Co. v. United
States, 429 U.S. 979 (1976), the appeals court established
criteria to be applied to determine in which class or kind of
goods an imported article belongs. These criteria are:
1. the general physical characteristics of the merchandise,
2. the expectations of the ultimate purchasers,
3. the channels, class or kind of trade in which the
merchandise moves,
4. the environment of the sale and the manner in which the
merchandise is advertised and displayed,
5. the use, if any, in the same manner as merchandise which
defines the class,
6. the economic practicality of so using the import, and
7. the recognition in the trade of this use. Carborundum,
63 CCPA 98, at 102.
Regarding the criteria listed above, the importer has
presented a sample garment, along with a matching bra and panty.
The importer, Inner Secrets/Secretly Yours, submits that the
company only markets underwear to underwear departments. The
boxer shorts are to be displayed in intimate apparel departments
placed near the matching bras and panties. The importer submits
that its licensing agreement precludes the company from using the
mark NO EXCUSES (under which the boxer shorts are sold) for
anything other than "bras, panties, foundation garments,
underwear, day wear and all other intimate apparel products for
ladies and teens." As to use and the expectations of the
purchasers, the importer claims the garment is principally used
as underwear and as it is sold in the intimate apparel department
next to other underwear garments, purchasers will use the boxer
shorts as underwear.
At first glance, it may appear that support can be found for
the importer's position in Mast Industries, Inc. v. United
States, 9 CIT 549 (1985), aff'd 786 F.2d 1144 CAFC (1986), and in -9-
St. Eve International, Inc. v. United States, 11 CIT 224 (1987).
In Mast, the court determined that a garment which was designed,
manufactured and used as nightwear was classifiable as nightwear.
In St. Eve, the court held that a garment which was manufactured,
marketed and advertised as nightwear was chiefly used as
nightwear and so was classifiable as such. The importer
maintains that it is an underwear company and that the boxer
shorts are distributed, marketed and sold as underwear and so are
classifiable as underwear. Customs disagrees. We believe the
subject boxer shorts are advertised ambiguously and sold as
multiple use garments. We believe the boxer shorts at issue
belong to a class or kind of goods known as shorts and not as
women's underwear.
First we want to address the marketing and advertising
presented to us. The importer submitted advertisements which
were described in the FACTS portion of this ruling. It is
important to note that the advertisements by Walmart, Ames and
Target do not identify the garments being advertised as
underwear, but merely identify the garments by name, i.e., bra,
panties, boxer shorts. The Target advertisement shows two
models, one wearing a plaid bra and matching plaid boxer shorts,
the other wearing a plaid bustier and plaid boxer shorts. The
garments are not characterized in the advertisement in any
manner, either as underwear or outerwear. We find the submitted
advertising is unpersuasive. The advertisements from the
Victoria's Secret catalogue were not supportive of the importer's
claim and in fact showed boxer shorts promoted as loungewear.
Customs acknowledges that there are some garments styled
like boxer shorts but made of soft silky fabric that may be used
by some women as underwear. However, Customs does not believe
that cotton flannel boxer shorts, as a class of garments, are
principally used in the United States by women as underwear.
The general physical characteristics of the garment at issue are
those of shorts. Its name even identifies it as shorts. Due to
its construction, we believe the garment would not be suitable as
underwear under most women's fashions. The bulk of the garment,
the looseness of its fit and the type of fabric used (cotton
flannel), in our opinion, make it unlikely that women would wear
flannel boxer shorts principally as underwear. However, the type
of fabric and the design and construction of the garment do make
it feasible and, we believe likely, that women will wear this
garment as shorts for various reasons including, and we believe
principally, for wearing in public. This belief is based not
only on the garment before us, but on the knowledge that it is
fashionable for women to wear boxer shorts as shorts on the
street and this use is well known in the trade.
Part of the argument that the boxer shorts at issue are
underwear is that they are marketed with a matching bra and -10-
panty. Customs does not dispute the likelihood that the panties
will be principally used as underwear, however, the matching bra
is of a type which may be worn as outerwear. In HRL 950685 of
March 11, 1992, Customs classified certain bras intended to be
worn as outerwear. Fortunately, the tariff provides specifically
for brassieres in heading 6212, HTSUSA, without distinction
between underwear or outerwear. In HRL 950685, Customs noted:
The undergarment industry has undergone tremendous
change in the last few years as to what is currently
acceptable as outerwear. Customs recognizes that fashion
trends may dictate how certain garments are being worn and
that bras worn as outerwear are a relatively new fashion
phenomenon. When most dictionaries defined brassieres as
"undergarments", the accepted fashion of the day mandated
that brassieres be hidden from view when worn. As is
readily apparent from what is currently in vogue, that rule
no longer holds true. A brassiere does not have to be worn
as an undergarment; it need only possess certain requisite
body supporting functions.
This office made several inquiries to well-known
lingerie and outerwear manufacturers to get the fashion
industry's current definition of "brassiere", Olga Company,
a manufacturer of lingerie, asserted that it is acceptable
these days to wear bras as outerwear. They recognize this
trend by manufacturing velvet bras that may be worn alone
underneath a blazer or sheer blouse. The end result is that
these bras, which are made by a traditional maker of
lingerie and sold in lingerie departments, are intended to
be seen when worn. Another manufacturer we contacted,
Calvin Klein, makes both lingerie and outerwear. They too
believe that the acceptable role of brassieres for use as
outerwear has greatly expanded over the past several years.
* * * Both types of garments [referring to underwear and
outerwear brassieres] are brassieres providing equal body
supporting functions; the only difference is that it is now
acceptable to let brassieres that have been embellished in
some manner show under outerwear or even be worn by
themselves.
We believe the importer in this case, Inner Secrets/Secretly
Yours, is well-aware of this fashion trend, particularly among
the target-age group for the boxers at issue, i.e., young women
in their teens to mid-twenties. In an August 2, 1993, article in
Discount Store News, Vol. 32, No. 15, p. A18, entitled "Equating
fashion with function; women's underwear", the trend toward dual-
use garments and the sale of garments which were intended to be
worn as outerwear though sold in the intimate apparel department
was highlighted. The following excerpts from the article are
particularly interesting: -11-
In mass market intimate apparel departments, the
balance of fashion and function is always critical.
* * *
Matching bra and panty sets have helped boost panty sales as
has an emphasis on the innerwear/outerwear trend of intimate
apparel.
* * *
The chain [referring to Kmart] recently took advantage
of the juniors, innerwear-as-outer-wear bra trend to reach
into higher price points. Though displayed in Kmart's
intimate apparel department, a set of bras from Inner
Secrets, Inc. were labeled "playwear", "funwear" and were
defined as innerwear/outerwear. These were displayed with
matching panties. * * * [emphasis added].
Clearly, the importer involved in this case, is aware that
garments intended to be worn as outerwear are sold in the
intimate apparel department of stores and in fact, produces and
distributes bras which are so marketed and advertised. Thus, we
find the fact that the boxer shorts are marketed in the intimate
apparel department alongside a matching bra which may be worn as
outerwear an unpersuasive argument that the boxer shorts are
underwear or principally used as underwear by women.
A review of articles on boxer shorts and their use by women
supports the position taken by the Customs Service that women in
the United States wear boxer shorts principally as shorts to be
seen. These articles illustrate that the trade recognizes this
use of boxer shorts, that it is economically practical, and that
consumers expect to find these garments in various departments,
including the intimate apparel department of stores, and will,
despite in which department the garment is sold, still use these
garments as shorts to be seen. As early as 1984, the trade
recognized the use of boxer shorts by women in the United States
as shorts. An article in the January 22, 1984, New York Times,
Section 6, p. 50, entitled "Boxer Shorts for Women" stated that
the owner of a small underwear store which specialized in printed
boxer shorts had "found customers on both sides of the Atlantic
buying the shorts, . . ., for lounging at home or for the beach
next summer." Again, in the New York Times, Section 1, Part 2,
p.69, on February 15, 1987, an article appeared entitled "Boxer
Shorts at the Beach". The article began: "The feistiest new
fashion in underwear-as-outerwear is the boxer short. Even women
wear them for dancing and beach cover-ups, or layer them to peek
out over trousers." Also in 1987, this time in the Atlantic
Business Chronicle, Section 2, p 6B, on August 10, 1987, in an
article entitled "Retailers Score on Fans' Thirst for Team -12-
Paraphernalia", the article stated that: "Boxer shorts with
little Bulldogs or Yellow Jackets on them sell real well, but
mostly to women, who wear them as outerwear, sewing up the fly."
[emphasis added]. In the New York Times, Section 12, p.54, on
August 2, 1987, in "On Campus, the Look Is, Well, Studied", the
article noted that among the trends on campus included "men's
plaid boxer shorts worn as outerwear on women (becoming dorm wear
as the weather cools)".
In 1988, the trend continued as reflected by an article in
the New York Times, Section B, p.6, on July 12, 1988, titled
"Boxer Shorts Meet the Sun". The article noted women's
propensity to borrow clothing from their male friends and
relatives. It stated: "Boxer shorts - also having a big revival
with men - have found new popularity as street wear for women."
The brief article ended with the following statement: "The really
impeccable woman threads a few stitches inside the fly placket of
the boxers, just to make sure it stays closed." [emphasis
added].
In the Daily News Record, Vol. 18, No. 231, p. 28, on
December 5, 1988, an article appeared headlined "Boxers: inside
and out; fad for wearing wild looking boxer shorts on the outside
delights retailers; Spring 89: Acting Up". Some pertinent
excerpts from that article are:
Young women will wear them [referring to boxer shorts]
almost anywhere but under wear, from classrooms to beaches,
while young men are exposing them more discreetly by letting
the boxer hang out under shorts. * * *
* * *
* * * The novelty and fancy prints and patterns on
boxers lend themselves more to outerwear, and a soft,
comfortable boxer short is less expensive than an outerwear
short.
* * *
[emphasis added].
The article quoted Howard Cooley, president of Jockey
International as saying that "'a lot of women are wearing our
boxers on the beach.'" The creator of Joe Boxer, Nicholas
Graham, was also quoted regarding women's use of boxer shorts.
He was quoted as saying: "'A lot of girls and young people
approaching yuppiehood are wearing our boxers as shorts'" and,
"'... we get letters from 16-year-old girls who send pictures of
themselves in class wearing our boxers.'" In the same article, a
Calvin Klein executive is quoted as saying: "'Women do buy our -13-
boxers as beach cover-ups, particularly the pleated and button-
front boxers.'"
In the New York Times, Section 1, Part 2, p. 34, on January
28, 1990, in an article about the underwear designer, Nicholas
Graham, under the headline "Style Makers; Nicholas Graham:
Underwear Designer", the writer begins by noting that while
Mr. Graham began a business with the idea that men would wear
boxer shorts with zany designs, "it turn[ed] out that women will
wear them too, as outerwear: they account for 50 percent of the
sales by Mr. Graham's company, the Joe Boxer Corporation."
[emphasis added].
In the August 17, 1990, edition of the Toronto Star, Life
section, p. B5, an article appeared headlined "Men's undies
bought more by women." The article addressed the trend of women
buying men's boxer shorts and wearing them as outerwear. It
noted that as men's boxer shorts became more fashionable,
"...women saw an economic opportunity in buying them as cheap,
comfortable shorts." The article noted that college-aged women
wear boxer shorts to lounge in and that women and girls wore them
over bathing suits at the beach. The article ended with a quote
from Jockey International President Howard Cooley. Mr. Cooley
was quoted as saying: "'You can't in any way overlook the
tremendous number of boxer shorts being bought by women as cover-
ups and as sportswear.'"
An article titled "Mad about Plaid: Tartans Make a Reprise
From Last Fall" which appeared in the September 17, 1992, St.
Louis Post-Dispatch, Style West, P.13, in discussing the fashion
revival of tartans and plaids stated: "In a borrowed-from-the-
boys move, girls' are buying men's flannel plaid boxer shorts,
sewing up the fly and wearing them for dorm attire." [emphasis
added].
More articles from 1993 include, from The Ottawa Citizen,
February 25, 1993, Fashion section, p. E5, "Women take a shine to
men's boxer shorts", in which the article related that Jockey
International reported "that 75 percent of all men's underwear is
bought by women." The article also related that the Daily News
Record was reporting that "the fashion-forward in major cities
from New York to Milan are wearing underwear as club wear,
workout wear and even beachwear." From The Orlando Sentinel,
Orange Extra section, p I9, on December 9, 1993, an article
called "Fun-to-Wear Underwear" reported on the continuing trend
to wear boxer shorts as outerwear. In the article, it was
stated:
But girls aren't to be left out of this latest craze in
the once-so-private-now-so-public-boxer-shorts mania. They
also can be found donning the latest pair of paisley, Mickey -14-
Mouse or Santa Claus boxers. The reason? Comfort! Many
teen-age girls like to lounge around in their favorite pair
of boxers when they're at home or just chilling with
friends.
* * * Boxers also come in many materials; silk, cotton
and flannel are popular picks. * * * join the many teens
who have shown that boxer shorts are no longer just for
under but outer wear as well.
Customs believes these cited articles serve as evidence of
an ongoing trend, particularly in the age group targeted by the
importer of the subject boxer shorts, especially among young
women to wear boxer shorts as shorts, not as underwear. By
definition, underwear is not meant to be seen when worn. See,
Children's Hose, 55 Cust. Ct. 6, (1965). Customs believes that
this use as shorts is well known by the trade. Although the
importer in this case is an underwear company which claims the
subject garment is an underwear garment sold only in intimate
apparel departments, it is our belief that cotton flannel boxers,
such as the ones at issue here, belong to a class of garments
known as shorts, not underwear, and are principally worn in the
United States by women and girls as shorts which are meant to be
seen when worn and as such, are not underwear. We note that in
regard to classification by principal use, the Court of
International Trade stated in Group Italglass U.S.A. v. United
States, Slip-op. 93-208 (Decided November 1, 1993):
The court stresses that it is the principal use of the class
or kind of goods to which the imports belong and not the
principal use of the specific imports that is controlling
under the Rules of Interpretation.
Finally, in Regaliti, Inc. v. United States, Slip-op. 92-80
(May 21, 1992), the Court of International Trade ruled on the
classification of certain garments commonly known in the United
States as "leggings". In that case, the plaintiff argued that
the garments at issue were designed as tights, identified on
invoices as tights and advertised as tights. On that basis, the
plaintiff argued the garments were tights, were used as tights
and should be classified as tights. The court rejected the
plaintiff's claim recognizing that "others do not usually call
these items tights." The court acknowledged the principal use of
the garments in the United States as pants. It noted the manner
in which the garments are usually worn in the United States and
stated in closing that the garments "are used for exercise or
streetwear and they belong under the general knit apparel
heading, 6104."
Similarly in this case, Customs believes the evidence is
overwhelming that boxer shorts are principally used by women in -15-
the United States as shorts to be seen. The importer may
identify the garments as underwear, but women and girls in the
United States wear boxer shorts as shorts to be seen and this use
is well-known throughout the fashion industry.
HOLDING:
The garments at issue, style 45481 and 84581, are
classifiable as women's woven cotton shorts in subheading
6204.62.4055, HTSUSA, textile category 348, dutiable at 17.7
percent ad valorem. You are correct in your classification of
the subject garment.
This decision should be mailed by your office to the
internal advice requester no later than 60 days from the date of
this letter. On that date 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