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HQ 963576




July 18, 2002

CLA2 RR:CR:TE 963576 SG

CATEGORY: CLASSIFICATION

TARIFF NO: 6207.11.0000

Helen A. Reetz, Esq.
Corporate Counsel
Jockey® International, Inc.
2300-60 Street
P.O. Box 1417
Kenosha, Wisconsin 53141-1417

RE: Classification of men’s boxer shorts with drawstring; underwear vs. loungewear

Dear Ms. Reetz:

This is in response to your letters of May 5, and 27, 1999, requesting a binding classification ruling on two men’s garments manufactured in Indonesia and merchandised and sold as underwear under the TOMMY HILFIGER® brand, pursuant to the Harmonized Tariff Schedule of the United States (HTSUS). You advise that Jockey has been the exclusive TOMMY HILFIGER® licensee for men’s underwear since 1993. Two samples were submitted.

FACTS:

The sample identified as style 2928-128B is a pair of men’s woven cotton "boxer" style shorts, size medium. It has a fully enclosed elasticized waist with two metal grommets at the center of the front through which a thick cotton cord with tipped ends is drawn. The cord functions as a drawstring and ties on the outside front of the garment. The garment has a placketed fly front, with a 5 1/2 inch opening, which does not break the waistband, with a one snap closure, a three-panel back, and hemmed leg bottoms with 1 1/2 inch side vents. The side length of the garment measures approximately 15 inches from the top of the waistband to its hemmed bottom, 13 inches across the relaxed waist, and 14 inches across a single leg opening. The sample does not have belt loops, inner or outer pockets, or a lining. A small horizontal Tommy Hilfiger red label is clipped to the outside of the waistband. It is our understanding that it will be sewn into the bottom of the waistband. A hanging tag stating the garment is underwear is attached to the waistband.

The sample identified as style 2928-128A is identical except for the absence of snap closure, resulting in an open fly. A small red horizontal TOMMY HILFIGER® label is sewn into the bottom of the waistband. The garment does not have a hanging tag.

You indicate that Jockey intends to market these products as underwear only due to their construction and fabrication. You state that the garments’ three-panel back was designed so that it would fit comfortably under conventional outerwear and yet provide sufficient seat room for comfort while sitting. You argue that the 5 1/2 inch fly opening with no closure, or only one closure, absence of a lining, short leg length, absence of pockets, and light weight of the fabric compared to outerwear make these garments unsuitable, for modesty's sake, for use other than as underwear. You state that the utility of these garments for uses other than as underwear is also limited by the absence of pockets. You indicate that the drawstring is simply a style element much like the brand identification and logos on the garments shown in the advertisements. You state that underwear garments with drawstrings have been wear-tested and found to be comfortable for wear under outer garments, consistent with the garments' intended use as underwear. You have submitted advertisements, which you indicate were placed in popular consumer magazines, illustrating the fashion of wearing trousers in a manner that allows the waistband of underwear to be seen. In addition, you submit hanging tags for underwear. You state that the silhouette and fit of these garments are identical to the TOMMY HILFIGER® woven cotton underwear boxer shorts you sell now. In support of your claim that these garments will be purchased for sale as underwear by retailers and for use as underwear by male consumers, you submit an ad for TOMMY HILFIGER®, which shows a male model wearing what appears to be a pair of boxers and the word “underwear”. You indicate that the garments that are the subject of this request for classification have not been marketed, therefore advertisements or catalogs with these particular garments do not exist. Classification in subheading 6207.11.0000, HTSUS, as underpants and briefs is sought.

ISSUE:

Whether the subject merchandise is properly classifiable as sleepwear or underwear under Heading 6207, HTSUS, or as outerwear garments under heading 6203, HTSUS?

LAW AND ANALYSIS:

Classification of goods under the HTSUS is governed by the General Rules of Interpretation (GRI's). GRI 1 provides that classification shall be determined according to the terms of the headings and any relative section or chapter notes. Merchandise that cannot be classified in accordance with GRI 1 is to be classified in accordance with subsequent GRI's.

Heading 6207, HTSUS, provides for, inter alia, men’s underpants, briefs, pajamas and similar articles. The term "underwear" generally refers to garments which are ordinarily worn under other garments and are not exposed to view when the wearer is conventionally dressed for appearance in public, indoors or out-of-doors. 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. Customs has consistently ruled that pajamas are generally twopiece garments worn for sleeping. Onepiece garments such as sleep shorts and sleep pants used for sleeping are not classifiable as pajamas, instead they fall into a residual provision within heading 6207, HTSUS, for similar articles.

If it is determined that the subject bottoms are classifiable as outerwear or loungewear, the applicable heading for the bottoms is heading 6203, HTSUS, which provides for, inter alia, men’s trousers and shorts.

Customs classifies boxer shorts as underwear or shorts on a case-by-case basis, depending on the characteristics of the shorts evident in each case. In classifying such merchandise, we have referred to the following checklist of characteristics that are indicative of non-underwear garments (sometimes referred to as guidelines). That is, the presence of the below-listed characteristics tends to indicate that garments are not underwear:

1. fabric weight greater than 4.2 ounces per square yard;

2. an enclosed or turned over waistband;

3. lack of a fly or presence of a 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;

7. the side length of a size medium in excess of 17 inches.

The presence of two or more of the above characteristics in a given case gives rise to a presumption that the garment is not underwear. The absence of these characteristics, or the presence of only one, gives rise to a presumption that the garment is underwear. In either event, the presumption is rebuttable and may be overcome by convincing evidence tending to show the contrary, such as marketing information or other physical characteristics. See Headquarters Ruling Letters (HQs) 955787 (April 26, 1994), 955305 (December 29, 1993), 954123 (December 17, 1993), 954632 (October 27, 1993), 956360 (September 27, 1993), 954336 (September 27, 1993), 953392 (September 20, 1993), 953408 (June 11, 1993), 951032 (May 7, 1992), and 087940 (September 16, 1991).

Both items 2928-128A and 2928-128B evidence at least two of the above characteristics: an enclosed waistband, and a single leg opening greater than the relaxed waist. Information regarding the fabric weight of the garments was not supplied. According to the above rule, the fact that the garments in issue have two of the above characteristic gives rise to the presumption that the garments are not underwear. Moreover, although the shorts exhibited only two of the above listed seven criteria the following physical characteristics, taken together, support the rebuttable presumption that the sample garments are not underwear:

(1) the substantial waistband and thick drawstring would show through and impact on the fit of any pants one were to wear on top of these shorts;

(2) the leg opening exceed the relaxed waist measurements;

(3) the hemmed leg openings with side slits are an appropriate stylistic feature for outerwear but, like the waistband, beyond what is necessary for underwear.

The question is whether there is sufficient other information to rebut this presumption. Information tending to rebut the presumption (that the shorts are not underwear) includes the following:

(1) The hangtag attached to the sample with the secured fly states that the merchandise is underwear. We note that no hangtag accompanies the sample with the unsecured fly opening.

(2) The statements submitted indicate that the shorts are sold in the underwear department.

(3) Physical characteristics of the shorts that tend to support the information referred to in (1) and (2) above.

The garments both have a three-panel back. Three-panel backs are generally designed for comfort and to provide sufficient seat room for comfort while sitting. This is a feature not generally found on a garment that may (and probably will) be principally worn for the type of non-private activities named in International Home Textiles, Inc., Slip Op. 97-31, March 18, 1997. In addition, the samples submitted are made of cotton fabric, the light weight of which suggests use of the garments as underwear or sleepwear rather than outerwear garments. The loose fit of the shorts is additionally noted.

Based on the foregoing information, we conclude that the presumption that the garments are not underwear has been overcome.

We must then determine whether the two garments are classified as loungewear, underwear or sleepwear.

In determining the classification of garments submitted to be loungewear, underwear, or sleepwear Customs usually considers the factors discussed in two court cases that addressed sleepwear. In Mast Industries, Inc. v. United States, 9 CIT 549, 552 (1985), aff’d, 786 F.2d 144 (CAFC, 1986), the Court of International Trade considered the classification of a garment claimed to be sleepwear. The court cited several lexicographic sources, among them Webster’s Third New International Dictionary, which defined “nightclothes” as “garments to be worn to bed.” In Mast, the court determined that the garment at issue therein was designed, manufactured, and used as nightwear and therefore was classifiable as nightwear. Similarly, in St. Eve International, Inc. v. United States, 11 CIT 224 (1987), the court ruled the garments at issue therein were manufactured, marketed and advertised as nightwear and were chiefly used as nightwear. Finally, in Inner Secrets/Secretly Yours, Inc. v. United States, 885 F. Supp. 248 (1995), the court was faced with the issue of whether women’s boxerstyle shorts were classifiable as “outerwear” under heading 6204, HTSUS, or as “underwear” under heading 6208, HTSUS. The court stated the following, in pertinent part:

[P]laintiff’s preferred classification is supported by evidence that the boxers in issue were designed to be worn as underwear and that such use is practical. In addition, plaintiff showed that the intimate apparel industry perceives and merchandises the boxers as underwear. While not dispositive, the manner in which plaintiff’s garments are merchandised sheds light on what the industry perceives the merchandise to be. *** Further evidence was provided that plaintiff’s merchandise is marketed as underwear.

While advertisements also are not dispositive as to correct classification under the HTSUS, they are probative of the way that the importer viewed the merchandise and of the market the importer was trying to reach.

Additionally, as this office has noted in prior rulings, “the merchandise itself may be strong evidence of use.” See HQ 957809, dated June 21, 1995, citing Mast Industries at 552, citing United States v. Bruce Duncan Co., 50 CCPA 43, 46, C.A.D. 817 (1963).

Furthermore, we bring your attention to International Home Textile, Inc., which classified garments similar to those at issue here as loungewear in heading 6103, HTSUS. The court therein stated:

Based upon a careful examination of the loungewear as well as the testimony of the various witnesses, the court finds that the loungewear items at issue do not share that essential character of privateness or private activity. As the parties have already stipulated, the loungewear is used primarily for lounging and not for sleeping. The court finds no basis in the exhibits, the witness testimony, or the loungewear’s construction and design to find that it is inappropriate, at a minimum, for the loungewear to be worn at informal social occasions in and around the home, and for other individual, nonprivate activities in and around the house e.g., watching movies at home with guests, barbecuing at a backyard gathering, doing outside home and yard maintenance work, washing the car, walking the dog, and the like....

In the instant case, a physical examination of garments in an effort to determine whether the garments at issue are loungewear or underwear leads us to the conclusion that they are somewhat ambiguous and not clearly recognizable as sleepwear or underwear or outerwear. The shorts have either a placketed open fly or a fly opening with one snap closure, substantial waistband with thick drawstring, and hemmed leg bottoms. We note that the substantial waistband and thick drawstring would show through and impact on the fit of any pants one were to wear on top of these shorts. This feature is not indicative of underwear. A one snap fly closure, like that found on style 2928-128B, is a feature generally found on underwear or sleepwear and not on loungewear or multipurpose garments as it is usually not substantial enough to ensure modesty. In addition, both garments’ contain a three-panel back, which was designed for comfort and to provide sufficient seat room for comfort while sitting. This is a feature not generally found on a garment that may (and probably will) be principally worn for the type of non-private activities named in International Home Textiles, Inc. Additionally, the samples submitted are made of cotton fabric not heavy enough for outdoor use.

In past rulings, Customs has stated that the crucial factor in the classification of a garment is the garment itself. As the court pointed out in Mast, "the merchandise itself may be strong evidence of use." Mast at 552, citing United States v. Bruce Duncan Co., 50 CCPA 43, 46, C.A.D. 817 (1963). However, when presented with a garment which is somewhat ambiguous and not clearly recognizable as sleepwear or underwear or outerwear, Customs will consider 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, such as purchase orders, invoices, and other internal documentation. 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 selfserving as was noted by the court in Regaliti, Inc. v. United States, SlipOp. 9280 (May 21, 1992).

In this case you submitted two letters advising that Jockey is the exclusive TOMMY HILFIGER® licensee for men’s underwear since 1993, and that the merchandise will be part of TOMMY HILFIGER® men’s underwear line. In support thereof a copy of the cover of the TOMMY HILFIGER® Underwear Fall/Holiday 1999 catalog showing a male wearing a similar garment, with the word underwear across the picture is submitted. You have also submitted a hangtag that is stated to be identical to those on other TOMMY HILFIGER® underwear boxers marketed by Jockey stating the garment is underwear. We note that the style number 2928-128B (the garment with the snap on fly) has a hangtag attached to the waistband, which says "underwear". You indicate that since the garments are displayed on hangers at retail, no other packaging will be present.

In Mast, 9 CIT 549, at 551, the court pointed out that the expert witnesses in that case agreed "that most consumers purchase and use a garment in the manner in which it is marketed." The documentation submitted is a factor to be considered in determining how this garment is marketed and likely to be used by purchasers, though it is not determinative in and of itself.

Insofar as garment 2928-128A (with open fly) is concerned, based on the physical characteristics of the subject garment, particularly the 5 1/2 inch unsecured fly opening which does not satisfy the conventional standards of modesty, combined with the absence of pockets, the three-panel back, which in our experience, is only found on underwear, the lightweight cotton fabric, and the documentation you have submitted, we find that the subject merchandise is not suitable for the type of non-private activities named in International Home Textile, Inc. Although the weight and bulk of the waistband and drawstring make it bulky and unsuitable to wear tucked into a pair of pants, the fashion among males in their teens and early 20's (what appears to be the average TOMMY HILFIGER® customer) is to wear one's pants low enough so that the waistband of one's underwear is clearly visible. We note that the undergarment industry has undergone tremendous change in the last few years. Customs recognizes that fashion trends may dictate how certain garments are being worn and that underwear being worn in such a manner as to be seen is a relatively new fashion phenomenon. When most dictionaries defined boxer shorts as "undergarments", the accepted fashion of the day mandated that underwear be hidden from view when worn. As is readily apparent from what is currently in vogue in certain portions of the male population, that rule no longer holds true. The top portion of these boxer shorts, specifically the waistband and drawstring, is specifically a fashion statement that is intended to be seen when worn under outerwear garments.

Accordingly, the bulky waistband with drawstring will not preclude the garments before us from being classified as underwear garments.

Based on our examination of garment 2928-128B, we find that although the one snap fly may appear to satisfy the conventional standards of modesty; due to its construction (the lightweight cotton fabric and the three panel back-both features not found on outerwear) and the documentation you submitted, overall it is not suitable for the type of non-private activities named in International Home Textile, Inc. Accordingly, it too is precluded from being classified as an outerwear garment.

HOLDING:

The sample garments, and with an elasticized waistband with drawstring, three panel back, placketed fly opening with either a one snap fly closure (style 2928-128B) or with unsecured fly opening (style 2928-128A) and hemmed leg bottoms are classified in subheading 6207.11.0000, HTSUSA, which provides for “Men’s or boys’ singlets and other undershirts, underpants, briefs, nightshirts, pajamas, bathrobes, dressing gowns and similar articles: Underpants and briefs: Of cotton.” The applicable general column one rate of duty is 6.2 percent ad valorem and the textile quota category is 352.

The designated textile and apparel category may be subdivided into parts. If so, the 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 renegotiations and changes, to obtain the most current information available, we suggest you check, close to the time of shipment, the Status Report On Current Import Quotas (Restraint Levels), an internal issuance of the U.S. Customs Service which is updated weekly and is available for inspection at your local Customs office. The Status Report on Current Import Quota (Restraint Levels) is also available on the Customs Electronic Bulletin Board (CEBB) which can be found on the U.S. Customs Service Website at www.customs.treas.gov.

Due to the changeable nature of the statistical annotation (the ninth and tenth digits of the classification) and the restraint (quota/visa) categories, you should contact your local Customs office prior to importation of this merchandise to determine the current status of any import restraints or requirements.

Sincerely,

Myles B. Harmon, Acting Director
Commercial Rulings Division

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