HQ 0954333 - Classification of men's woven silk shorts from China; underwear; sleepwear; loungewear. - United States International Trade Commision Rulings

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HQ 954333

August 11, 1993

CLA-2 CO:R:C:T 954333 ch

CATEGORY: CLASSIFICATION

TARIFF NO.: 6203.49.3050

Robert T. Stack, Esquire
Siegel, Mandell & Davidson, P.C.
One Astor Plaza
1515 Broadway
43rd Floor
New York, New Work 10036

RE: Classification of men's woven silk shorts from China; underwear; sleepwear; loungewear.

Dear Mr. Stack:

This is in response to your letter of May 13, 1993, requesting tariff classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) for two styles of men's silk boxer shorts. Samples were provided to this office for examination and will be returned to you under separate cover. Please reference your clients Intimo, Incorporated and Enzy Trading and Development.

FACTS:

The submitted samples, styles 170000 (burgundy) and 174992 (printed), are size extra large men's woven silk boxer shorts. They are essentially identical except for color. These garments feature fully elasticized tunnel waistbands with functional interior drawstrings. They possess placketed fly front openings with one button closures. Each sample has side seam pockets, a rear pocket and side vents. They measure approximately 19 inches from the top of the waistband to the hemmed bottom; 15 inches across the relaxed waist; 15 inches across a single leg opening.

You have enclosed pages 25 through 27 of Intimo's "Max Deco" Spring 1993 Catalog, which describe the subject merchandise as "boxer jams, solids, sandwashed: three pocket pleated pant with both elastic and drawstring waistband."

ISSUE:

What is the proper tariff classification for the subject merchandise?

LAW AND ANALYSIS:

In light of contemporary fashions trends, it is our practice to classify boxer shorts as either underwear, sleepwear or shorts on a case-by-case basis. See HRL 953487, dated April 22, 1993; HRL 953005, dated December 24, 1992; HRL 951981, dated September 8, 1992. We recognize the following features as 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 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 should not exceed 17 inches.

Boxer shorts which display more than one of the above features are presumptively not underwear. However, this presumption is rebuttable where it can be shown that additional criteria such as marketing or other physical attributes are determinative.

In this case, the shorts possess enclosed waistbands and feature three outer pockets. Hence, the garments are presumptively not underwear. The design and appearance of these articles support this conclusion. In addition, they do not appear to be marketed as underpants. Accordingly, the garments are not classifiable as underwear.

The Guidelines for the Reporting of Imported Products in Various Textile and Apparel Categories, CIE 13/88, state, at page 24:

The term "nightwear" is interpreted as meaning "sleepwear" so that certain garments worn in bed in the daytime, as by infants over 86 centimeters in height and the bed-ridden, are included. (Emphasis added).

Similarly, in Mast Industries v. United States, 9 CIT 549, the court concluded that the definition of nightclothes was "garments worn to bed." Although the instant shorts may be worn to bed, they appear to be designed as multi-purpose garments. They are suitable for use in and around the home as loungewear, or even out of doors. Hence, they are not primarily used as garments to be worn in bed and are not classifiable as sleepwear.

In HRL 951032, dated May 7, 1992, we stated:

After examining the garments in question, we find that there is nothing about the styling, fabric, cut, or construction of these garments which indicate that they were designed primarily for wear to bed. Rather, the garments are designed and constructed in the manner and style of knit sportswear. We believe that these garments are part of the relatively new men's loungewear trade where the garments are designed for comfortable wear in and around the home. Garments of this type are multi-purpose garments rather than garments designed primarily to be worn to bed for sleeping.

Accordingly, we found that the garments were properly classified as shorts. As the instant garments are also multi-purpose articles suitable for use as loungewear or out-of-doors, they will be classified as shorts.

HOLDING:

The subject merchandise, styles 170000 and 174992, are classifiable under subheading 6203.49.3050, HTSUSA, which provides for men's woven silk shorts containing 70 percent or more by weight of silk or silk waste. The applicable rate of duty is 3 percent ad valorem.

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 the local Customs office prior to importing the merchandise to determine the current status of any import restraints or requirements.

Sincerely,

John Durant, Director

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