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HQ 960346




April 10, 1997

CLA-2 RR:TC:TE 960346 jb

CATEGORY: CLASSIFICATION

TARIFF NO.: 6108.91.0040

Port Director
U.S. Customs Service
300 S. Ferry Street
Terminal Island, CA 90731

RE: Decision on Application for Further Review of Protest No. 2704-97-100847; children's garments; nonunderwear; discrepancy between classification and textile category

Dear Madam:

This is a decision on application for further review of a protest timely filed on behalf of Obion Company, division of Salant Corporation, on March 4, 1997, against your decision regarding the classification of certain children's knit lower body garments and issuance of Notices to Redeliver said merchandise. The notices of redelivery were issued on January 23, 1997. Samples of the subject garments were submitted to this office for examination.

FACTS:

The merchandise that is the subject of the present protest consists of three styles of girls' boxer shorts made of 100 percent knit cotton fabric. Two of the boxer shorts are virtually identical, differing only in print and size. These boxer shorts are sized S (7-8) and L (14-16) and feature a one and one half inch wide exposed elasticized waistband, a mock fly front and hemmed leg openings. The boxer shorts sized "S" come in a heart print and the size "L" come in a teddy bear print. The third pair of boxer shorts, a bunny print, is sized 2T and features a ribbed elasticized waistband which is exposed on the inside of the waistband, a mock fly front and hemmed leg openings.

This merchandise was classified in subheading 6108.91.0040, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), which provides for women's or girls' slips, petticoats, briefs, panties, nightdresses, pajamas, negligees, bathrobes, dressing gowns and similar articles, knitted or crocheted: other: of cotton: other: girls', with corresponding quota category 350. The Protestant claims this classification is in error and that the proper classification for this merchandise is in subheading 6108.91.0025, HTSUSA, which provides for women's or girls' slips, petticoats, briefs, panties, nightdresses, pajamas, negligees, bathrobes, dressing gowns and similar articles, knitted or crocheted: other: of cotton; underwear: girls', with corresponding quota category 352.

The Protestant claims that classification in subheading 6108.91.0025, HTSUSA, is correct for the following reasons:

1. The subject merchandise is identical to the garment constructed of cotton flannel which was the subject of New York Ruling (NY) 809762, dated June 2, 1995 (a sample of this garment, a pair of cotton flannel boxer styled shorts featuring a one and a half inch wide exposed elasticized waistband, a mock fly front and hemmed leg openings was submitted to this office for examination);

2. The subject merchandise does not correspond to the guidelines for textile category 350 set forth in the Guidelines for the Reporting of Imported Products in Various Textile and Apparel Categories, (Guidelines),CIE

3. The subject boxer shorts are properly classifiable as underwear pursuant to the guidelines set forth in numerous Customs rulings, specifically, HQ 951754, dated June 25, 1992 and Inner Secrets/Secretly Yours, Inc. v. United States, Slip Op. 95-60 (CIT April 10,

4. Classification in textile category 352 is further supported by rulings NY 815530, dated October 18, 1995 and NY 815862, dated October 23, 1995, and by the fact that Protestant cannot find any rulings issued by Customs which hold women's or girls' knit boxer shorts to be classified under textile category 350; and,

5. Advertisement/marketing.

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 NY 809762 a pair of girl's woven cotton flannel boxer shorts were classified in subheading 6208.91.1020, HTSUSA. That classification was stated to provide for "women's or girls' singlets and other undershirts, slips, petticoats, briefs, panties, night dresses, pajamas, negligees, bathrobes, dressing gowns and similar articles: nightdresses and pajamas: of cotton, other: girls'". The textile category designation was stated as 352 and the duty was stated as 8.4 percent ad valorem. A review of the tariff reveals that subheading 6208.91.1020, HTSUSA, actually provides for, women's or girls' singlets and other undershirts, slips, petticoats, briefs, panties, nightdresses, pajamas, negligees, bathrobes, dressing gowns and similar articles: other: of cotton: bathrobes, dressing gowns and similar articles; girls'. The actual textile category designation for this provision is 350 and the duty is 8.2 percent ad valorem.

It is clear that NY 809762 is flawed due to the ambiguities raised in regard to the tariff classification and the corresponding provision. When the National Import Specialist (NIS) for this commodity was consulted regarding this garment he confirmed that there had been a typographical error with regard to the tariff classification number. The proper tariff classification for this merchandise should have been subheading 6208.91.3020, 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: other: of cotton: other; girls', with corresponding textile category designation 352 and a duty of 11.7 percent ad valorem. In the opinion of the NIS, the woven flannel boxer shorts are similar to sleepwear. However, as there is no separate statistical breakout for sleepwear bottoms ( that is, a sleepwear garment that is not a nightdress or a pajama) in heading 6208, HTSUS, classification devolves to the "other" category, with corresponding textile category 352 . As was stated in HQ 956239, dated October 4, 1994, discussing the classification of women's pajama separates:

In both HRL 088635 and 089367, Customs concluded that no support could be found for the proposition that the common meaning of the term pajamas included the individual components of a pajama set standing alone. Thus, pajama bottoms imported without their matching pajama tops are not classifiable as pajamas. The same holds true for the opposite case.

Accordingly, this office is in the process of modifying NY 809762 to reflect proper classification of the merchandise in subheading 6208.91.3020, HTSUSA.

Heading 6108, HTSUSA, provides for women's or girls' slips, petticoats, briefs, panties, nightdresses, pajamas, negligees, bathrobes, dressing gowns and similar articles, knitted or crocheted. Unlike heading 6108, HTSUS, which covers knitted or crocheted garments, heading 6208, HTSUS, the provision for woven garments, does not have separate subheadings for underwear and sleepwear. Accordingly, anything that does not squarely fit into the garment types provided for, that is, slips and petticoats, nightdresses and pajamas, or bathrobes, dressing gowns and similar articles, will be placed in the "other, other" basket category. The textile category that corresponds to this classification is 352. The Guidelines state that textile category 350 is designated for robes and dressing gowns and that textile category 352 is designated for underwear. Thus, although the textile category in both the case of NY 809762 (subheading 6208.91.3020, HTSUSA, and textile category 352) and the present protest (subheading 6108.91.0040, and textile category 350) differ for this merchandise, classification under the HTSUSA takes precedence over category determination. Therefore, regardless of the impact on the textile category, the classification must stand.

Although the woven women's boxer style shorts that were the subject of Inner Secrets was determined by the court to be classified in subheading 6208.91.3010, with a 352 textile category, there are several distinctions that can be made between the subject garments and the garment at issue in Inner Secrets. The court in Inner Secrets refers to the guidelines that were erroneously applied to the women's boxer style shorts in HQ 951754 only because the plaintiff had relied on those guidelines to his detriment, and not because the guidelines for men's boxer shorts are to be interchangeably used with women's boxer style shorts. Subsequently, HQ 951754 was modified by HQ 957133, dated August 14, 1995 to reflect Customs position that the guidelines for men's boxer shorts are not to be used for the classification of women's boxer shorts. Furthermore, HQ 951754 addressed classification of the women's boxer shorts in either heading 6204, HTSUS, as outerwear shorts or heading 6208, HTSUS, as sleepwear shorts. The fact that subheading 6208.91.1010, HTSUSA, which provides for "similar to bathrobes and dressing gowns" was not discussed in HQ 951754 has no bearing on this case. As we have already discussed, there is a discrepancy between heading 6208, HTSUS, and heading 6108, HTSUS, as far as what, if any, provisions are present for underwear and sleepwear. To reiterate, heading 6208 does not provide any separate provision for underwear, while heading 6108, HTSUS, does so provide. Thus, the fact that in Customs opinion the subject garments are classified in subheading 6108.91.0040, HTSUSA, with textile category designation 350, does not mean that the garment is a bathrobe or dressing gown. It is the classification which determines the textile category- not the other way around.

The appearance of the women's style boxer shorts in Inner Secrets is not identical to the present children's boxer style shorts in that in the former, the seams which are sewn horizontally across the fly, dividing the fly opening into thirds, was decided by the court to be comparable to a functional fly (and not a mock fly as is the case in the present shorts) and thus the garments were stated to be presumptively underwear. The court also notes in its decision that much emphasis is placed on the advertising and marketing of the women's woven garment which supports the claim that the garments are classifiable in subheading 6208.91.3010, HTSUSA, as underwear. In furtherance of this claim it was stated that women's use of the boxer style short as underwear is practical and is in response to recent fashion trends. We cannot state with the same certainty that the present children's boxer shorts are worn as underwear. 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. Particularly, in regard to the boxer shorts sized 2T, a toddler size, we question why a toddler, who is not yet using underwear and is still in diapers, would have use for such an "underwear" garment to be placed over the diaper.

The Protestant makes reference to NY 815530 and NY 815862 as proof that the present garments should be classified under textile category 352. As we have already stated, classification takes precedence over the textile quota designation. Furthermore, what might be appropriate use of a garment for women, based on "fashion trends", might not be appropriate for children. What is critical to the classification is the principal use of these garments and not some fugitive use. The Protestant also states that there are no rulings issued by Customs which hold women's or girls' knit boxer shorts to be classified under textile category 350. This statement is in error. We direct Protestant to HQ 952567, dated January 6, 1993, which classified a children's lower body garment described as being made of finely knit cotton jersey fabric and featuring an "elasticized waist and short legs with rib knit capping at the leg openings", sized 2Y-4Y, in subheading 6108.91.0040, in textile category 350.

Finally, Protestant submitted documentation in the way of advertisement for the subject garments. The advertisement states "Change Daily"- an instruction which the Protestant states applies only to underwear not outerwear or loungewear- "Joe Boxer underwear, sleepwear and long underwear for Boys, Girls and Toddlers". The Protestant also states that the boxer shorts are sold to the underwear/sleepwear buyer of the retailer and merchandised and sold in the children's underwear/sleepwear department along with underpants, undershirts and socks. An article from the February 7, 1997 issue of DNR was also submitted which Protestant claims evidences that "the entire fashion appeal to girls of the Joe Boxer cotton knit boxer shorts is to copy the Joe Boxer underwear which has become so popular with boys". In regard to the "Change Daily" advertisement, it is the opinion of this office that the advertisement only raises further ambiguities about the subject garments. In contrast to the Protestant's belief that "change daily" are instructions exclusive to underwear, we find that the same can be said of outerwear or loungewear. Additionally, the advertisement shows each day of the week represented by a child (or children) wearing both an upper and a lower garment. In some cases, the child is also wearing sneakers and a hat. This advertisement does not provide conclusive proof that the lower garments are underwear and are marketed solely as such, instead this gives further weight to the argument that these are not underwear garments; this is also bolstered by the fact that these garments are sold in the underwear/sleepwear department. Lastly, the article submitted to this office never explicitly mentions the appeal of these garments as underwear to girls- the article is merely illustrative of the general popularity of boxer shorts in the market.

We also note that in response to a question regarding the availability of matching tops with the subject boxer shorts we were told that while one of the prints has a T-shirt which "coordinates" with one of the bottoms, "most do not" and they are not sold together or packaged together. Even if the Protestant states that these coordinated tops are neither sold nor packaged together with the bottoms, it is not hard to imagine that when displayed in the underwear/sleepwear department of the stores, these upper and lower garments will be within close proximity of one another, suggesting to the consumer that they can or are to be worn together.

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 this garment is not as an underwear garment. Thus, the proper classification for this merchandise is in subheading 6108.91.0040, HTSUSA.

HOLDING:

The subject merchandise, was correctly classified in subheading 6108.91.0040, HTSUSA, which provides for women's or girls' slips, petticoats, briefs, panties, nightdresses, pajamas, negligees, bathrobes, dressing gowns and similar articles, knitted or crocheted: other: of cotton: other: girls'. The applicable rate of duty is 8.8 percent ad valorem and the quota category is 350.

The protest should be denied in full and a copy of this ruling should be appended to the CF 19 Notice of Action to satisfy the notice requirement of section 174.30(a) Customs Regulations.

In accordance with Section 3(A)(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, this decision should be mailed by your office to the Protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with the decision must be accomplished prior to mailing of the decision. Sixty days from the date of the decision 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

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