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HQ 957133




August 14, 1995

CLA-2 R:C:T 957133 jb

CATEGORY: CLASSIFICATION

TARIFF NO.: 6204.62.4055

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

Sincerely,

John Durant, Director

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