HQ 0953392 - Application for further review of Protest No. 2809-93- 100075; classification of woven silk boxer shorts; men's; women's; unisex; underwear. - United States International Trade Commision Rulings

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HQ 953392

September 20, 1993

CLA-2 CO:R:C:T 953392 ch

CATEGORY: CLASSIFICATION

TARIFF NO.: 6207.19.0020

District Director
U.S. Customs Service
555 Battery Street
Post Office Box 2450
San Francisco, California 94126

RE: Application for further review of Protest No. 2809-93- 100075; classification of woven silk boxer shorts; men's; women's; unisex; underwear.

Dear Sir:

The above-referenced protest was forwarded to this office for further review. We have considered the protest and our decision follows.

FACTS:

The submitted samples, styles 3002, 3006, 3007 and 3008, are size medium woven silk boxer shorts. Style 3006 is a children's size medium. Each sample features a turned over waistband and a fly front opening with a one button closure. The garments do not possess belt loops, pockets, or a lining, and measure less than 17 inches from the top of the waistband to the hemmed bottom.

Affixed to each garment is a hangtag and label which indicates that they are sold as part of the "Mansilk" line of clothing. The hangtags possess a photograph of a male model clad in underpants and an undershirt.

The importer states that styles 3002, 3007 and 3006 possess relaxed waist and leg opening measurements as follows:

Relaxed Waist

SMALL MEDIUM LARGE XLARGE

3002 24 26 28 30
3007 25 27 29 31
3006 16 18 20

Leg Opening

SMALL MEDIUM LARGE XLARGE

3002 24 1/2 25 1/2 26 1/2 27 1/2
3007 26 27 28 29
3006 21 22 23

Style 3008 appears to have leg openings which measure approximately the same as the relaxed waist.

In addition, the importer has submitted seat measurements for the garments which are as follows:

Seat Measurements

SMALL MEDIUM LARGE XLARGE

3002 21 1/2 22 1/2 23 1/2 25
3007 23 1/4 24 1/4 25 1/4 26 1/2
3006 16 1/2 17 1/2 18 1/2

In a written submission of September 10, 1993, the importer has filed two price lists which read, in pertinent part, as follows:

Men's 1993 Transitional Fall Price List
Mansilk Outer Collection
Printed Shorts

Make a fashion statement, with our sporty printed silk shorts. Sitting at a cafe you will find that our unusual, one of a kind prints are great conversation starters. Designed for comfort with a button fly and covered elastic.

M-333P Printed Charmeuse Athletic Cut
Short - SMLXL.

Our sporty silk shorts are great for running, working out at the gym, sitting at the beach, hiking...Ready for anything! Our shorts with a button fly and covered elastic are designed for the active male.

Solids

M-333H Sandwashed Habutai Athletic Cut,
Short - SMLXL

The importer states that style 3007 corresponds to item 333 which are featured in the price lists.

In addition, miscellaneous sales confirmations have been submitted, which allude to the instant merchandise as "men's woven shorts."

Finally, we are informed that "Mary Green Enterprises is a wholesaler, selling primarily through salespersons who carry samples. Therefore, it does not have catalogs or advertisements."

This protest encompasses various entries between April 30, 1992 and September 1, 1992. These shipments were entered under subheading 6203.49.3050, HTSUSA, which provides for men's silk shorts. However, they were liquidated under subheading 6204.69.3040, which provides for women's silk shorts.

ISSUE:

What is the proper tariff classification for the instant boxer shorts?

LAW AND ANALYSIS:

Classification of goods under the HTSUSA is governed by the General Rules of Interpretation (GRI). GRI 1 provides that classification is determined first in accordance with the terms of the headings of the tariff and any relative section or chapter notes. Where goods cannot be classified on the basis of GRI 1, the remaining GRI will be applied in order.

Effective January 1, 1993, Chapter 62, Note 8 provides that:

Garments of this chapter designed for left over right closure at the front shall be regarded as men's or boys' garments, and those designed for right over left closure at the front as women's or girls' garments. These provisions do not apply where the cut of the garment clearly indicates that it is designed for one or other of the sexes.

Thus, men's or boys' garments are currently distinguished from women's or girls' garments on the basis of the direction of the closure.

However, prior to January 1, 1993, Chapter 62, Note 8, stated that:

Articles of this chapter which cannot be identified as either men's or boys' garments or as women's or girls' garments are to be classified in the headings covering women's or girls' garments.

Hence, unisex garments were classified as women's or girls' garments at the time the instant merchandise was entered.

In Headquarters Ruling Letter (HRL) 087940, dated September 16, 1991, we set forth criteria with respect to the classification of boxer shorts:

In classifying the merchandise at issue we have reviewed the distinction between underwear and outerwear, and believe that the following features are 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);

7. The side length of a size medium should not exceed 17 inches.

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.

The fourth criteria above provides a test for distinguishing men's garments from unisex garments and thus accomplishes nothing more than what is required by Note 8, Chapter 62. The comparison of the leg opening to the relaxed waist is merely an easy method for the import specialist to effect this distinction.

Therefore, if the garments possess single leg openings greater than the relaxed waist, or if the size specifications so indicate, they will be classified as unisex garments.

In this case, excluding the child's garment, the leg openings measure the same as or less than the size of the relaxed waist. Hence, based upon the fourth criteria cited above, they are designed for men. Moreover, the garments appear to be marketed for men based upon the presence of the "Mansilk" label and the photograph of the male model on the hangtags. Therefore, we conclude that the instant boxer shorts are garments designed for men.

However, the criteria set forth in HRL 087940 also distinguish between underwear and outerwear garments. Boxer shorts possessing more than one of the enumerated features are presumptively outerwear. In this case, styles 3002, 3007 and 3008 possess only one non-underwear feature (the enclosed waistband). Moreover, these items are composed of silk, which is a lightweight fabric that will be comfortable when worn beneath other garments. Hence, they appear to possess the characteristics of underwear and will be classified as such absent convincing evidence to the contrary.

Style 3006 possesses leg openings greater than the relaxed waist in addition to an enclosed waistband. Under normal circumstances these two non-underwear features would give rise to a presumption that the garment is outerwear. However, this article has been designed for children and features a waist much more narrow than a typical pair of boxer shorts. Hence, we are of the opinion that the leg openings are not indicative of a non- underwear garment in this instance. As style 3006 is otherwise similar to styles 3007 and 3008, it shall also be classified as underwear absent evidence to the contrary.

As noted above, the importer has submitted price lists referring to the garments as "outerwear," as well as invoices which list these items as "men's woven shorts." However, Mary Green Enterprises concedes that it is a wholesaler of boxer shorts. Therefore, it has no control over how these articles will be marketed at retail. Indeed, the hangtags feature a male model wearing only undergarments. This fact indicates that the boxer shorts are in fact marketed as underwear. In this instance the submitted marketing materials are inconclusive. Accordingly, we will classify these garments on the basis of their design characteristics, which favor the underwear classification.

HOLDING:

The subject merchandise is classifiable under subheading 6207.19.0020, HTSUSA, which provides for men's or boys' singlets and other undershirts, underpants, briefs, nightshirts, pajamas, bath-robes, dressing gowns and similar articles: underpants and briefs: of other textile materials, other: containing 70 percent or more by weight of silk or silk waste. The applicable rate of duty is 11.2 percent ad valorem.

Since the rate of duty under the classification indicated is more than the liquidated rate, you are instructed to deny the protest in full.

Sincerely,

John Durant, Director

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