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HQ 954123


December 17, 1993

CLA-2 CO:R:C:T 954123 ch

CATEGORY: CLASSIFICATION

TARIFF NO.: 6203.42.4050

District Director
Building 178
Room 3308
Kennedy Airport Area
Jamaica, New York 11430

RE: Application for further review of Protest No. 1001-93- 102029 under 19 U.S.C., section 1514(c)(2); classification of men's woven cotton flannel boxer shorts from Hong Kong; sleepwear; outerwear; underwear.

Dear Sir:

This is a decision on application for further review of a protest timely filed by Sidney N. Weiss, Esq. on behalf of Bolero, Inc. against your notice of redelivery issued on March 10, 1993. We have considered the protest and our decision follows.

FACTS:

The sample submitted is a size medium pair of men's woven cotton flannel boxer shorts, which is representative of styles designated as 4500 and 4502. It features a fully elasticized waistband, a fly front opening with a one button closure, and cuffs of contrasting color. The garment measures 19 inches from the top of the waistband to its cuffed bottom; 14 inches across the relaxed waist; 12 1/2 inches across a single leg opening. The fly front does not break the waistband. This article does not possess belt loops, inner or outer pockets or a lining.

The instant merchandise was entered as undershorts pursuant to subheading 6207.91.3020, HTSUSA, subject to textile category 352. Customs appraised the merchandise as shorts under subheading 6203.42.4050, HTSUSA, subject to textile category 347, and issued a redelivery notice to the protestant for failure to tender the required visa.

ISSUE:

What is the proper tariff classification for the instant garment?

LAW AND ANALYSIS:

Generally, we classify boxer shorts as either underwear, sleepwear or shorts on a case-by-case basis. See Headquarters Ruling Letter (HRL) 953408, dated June 11, 1993; 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 garment possess an enclosed waistband and a side length of 19 inches. Hence, there arises a presumption that it is not underwear. The presence of cuffed leg bottoms supports this conclusion, as undershorts do not commonly feature cuffs. Due to the side length and cuffed legs the garment would be visible if worn beneath a typical pair of outerwear shorts. These features would also tend to render this item bulky and uncomfortable at the mid-thigh if worn under a pair of trousers. In the absence of marketing or other information tending to establish that this article is principally designed for use as underwear, we shall classify it as an outerwear garment.

The protestant has submitted letters from its retail clientele, advertisements featuring the instant garment and a newspaper article discussing recent fashion trends. These documents have been submitted to rebut the presumption that the merchandise is not classifiable as underwear.

Four of protestant's clients have filed single page letters. Each correspondent states that the garment will be marketed as underwear and not as sleepwear or outerwear. Three of the letters aver that the garment will be sold through the retailer's underwear department. Although these submissions are entitled to some deference, in this instance we conclude that they do not, in and of themselves, rebut the presumption that the garment is not underwear. We note that the letters contain one or two sentence conclusions that the article is underwear without stating the basis for this finding. Furthermore, we are of the opinion that it is unlikely that the boxer shorts will be principally used as underwear based upon its physical attributes. Therefore, more in the way of evidence is required to rebut this presumption.

The advertisements which display the garment provide insight as to how it is actually being marketed. This material contains such language as "flannel boxers," "a great selection of plaid patterns in comfortably soft, warm cotton flannel," "cotton flannel boxers." Protestant notes that there is no suggestion that the shorts are to be worn as outerwear. In addition, counsel argues that this language supports the classification of this article as underwear.

However, we find that this material does not explicitly or implicitly encourage the consumer to use the merchandise as underwear. At best, the advertising leaves the use of the shorts to the consumer. In point of fact, the garment is pictured next to pajamas and bathrobes in one instance, and is actually worn as outerwear for use around the home in another. We conclude that the garment is being marketed in such a manner so as to suggest to the consumer a variety of uses which include but are not limited to underwear. Hence, the submitted marketing information does not rebut the presumption that the boxer shorts are not underwear.

Finally, counsel has submitted a newspaper article from the New York Times, dated September 12, 1993, by John Marchese. This piece notes that in today's fashion climate boxer shorts worn beneath outerwear are often intentionally left visible for public scrutiny:

Context: Underwear is uncovered and boxer shorts are back. Once, nothing came between us and our Calvins. Now, it's what's between that matters.

"The interpretation of underwear waistbands sticking out of pants is that it really was coming out of prison style," Mr. Martin said. "Prisoners are not allowed to wear belts so they can't hang themselves. So their pants are always falling down a little. Urban youth saw men in prison, and the style was picked up in city life in the last two years or so."

Possible Variation: What the associate curator of the Costume Institute, Harold Koda, calls "the reverse Marky Mark" -- the bottoms of boxer shorts sticking out below cutoffs.

In light of this trend, counsel urges us to expand the underwear classification to include garments which may be exposed to public scrutiny.

We recognize that the instant garment may be worn beneath other garments as a fashion statement. However, we conclude that it will not principally be used in that manner. Based upon the physical characteristics of this pair of shorts, we find that it is more likely that it will be used as an outerwear garment. In addition, at this time, we are of the opinion that the trend set forth in the New York Times article is a fugitive use for boxer style shorts. For these reasons, we conclude that this merchandise is 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, it appears to be designed as a multi-purpose garment. It is suitable for use in and around the home as loungewear, or even for use out-of-doors. Hence, it is not primarily used as a garment to be worn in bed.

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.

On this basis, we found that the merchandise was not classifiable as sleepwear and was properly classified as shorts. As the instant garment is also identifiable for use as loungewear, it will be classified as a pair of shorts.

HOLDING:

Therefore, based on the foregoing discussion, you are instructed to deny the protest in full. The subject merchandise is classifiable under subheading 6203.42.4050, HTSUSA, which provides for men's or boys' suits, ensembles, suit-type jackets, blazers, trousers, bib and brace overalls, breeches and shorts (other than swimwear): trousers, bib and brace overalls, breeches and shorts: of cotton: other: other, shorts: men's. The applicable rate of duty is 17.7 percent. The textile category is 347.

A copy of this decision should be attached to the CF 19 Notice of Action to satisfy the notice requirement of section 174.30(a), Customs Regulations.

In accordance with Section 3A(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, Lexis, Freedom of Information Act and other public access channels.

Sincerely,

John A. Durant, Director
Commercial Rulings Division

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