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HQ 954632


October 27, 1993

CLA-2 CO:R:C:T 954632 ch

CATEGORY: CLASSIFICATION

TARIFF NO.: 6203.42.4050

Jonathan M. Fee, Esquire
Grunfeld, Desiderio, Lebowitz
& Silverman
1201 West Peachtree Street, N.E.
Atlanta, Georgia 30309

RE: Modification of NYRL 882670; classification of mens' woven cotton denim boxer shorts; sleepwear; underwear; denim.

Dear Mr. Fee:

This is in response to your letter of July 14, 1993, requesting reconsideration of New York Ruling Letter (NYRL) 882670, dated March 5, 1993. NYRL 882670 concerned the tariff classification, under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA), of two pairs of mens' woven boxer shorts. Please reference your clients, J.C. Penney Purchasing Corporation and Smart Shirts Limited.

FACTS:

The submitted samples are two pairs of cotton denim boxer shorts. The shorts, both designated as style 505-4300, are almost identical, with the exception that one is solid blue and the other is blue and white striped. You indicate that their fabric weight is approximately 6.0 ounces per square yard. These articles feature a fully elasticized waistband with the elastic exposed on the interior surface and a one button closure. They do not possess belt loops, inner or outer pockets or a lining.

Each sample measures approximately 14 inches across the relaxed waist; 16 1/2 inches from the top of the waistband to the hem bottom; 13 inches across a single leg opening.

In New York Ruling Letter (NYRL) 882670, dated March 5, 1993, the instant boxer shorts were classified under subheading 6207.91.3010, HTSUSA, which provides for men's woven cotton sleepwear. This conclusion was premised upon the representation that the shorts would be marketed through the Mens Sleepwear department of J.C. Penney stores. However, J.C. Penney also indicated that the merchandise was intended for use as both loungewear and sleepwear.

ISSUE:

Whether the instant boxer shorts are classifiable under subheading 6207.11.0000, HTSUSA, which provides for men's woven cotton underpants and briefs; or subheading 6207.91.3010, HTSUSA, which provides for men's woven cotton sleepwear; or subheading 6203.42.4050, HTSUSA, which provides for men's woven cotton 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.

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 Headquarters Ruling Letter (HRL) 954336, dated September 27, 1993; HRL 953487, dated April 22, 1993; HRL 951981, dated September 8, 1992. In HRL 087940, dated September 16, 1991, we recognized 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 (not including the waistband, or button or zipper fly closures);

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 criteria such as marketing or other physical attributes are determinative. In this instance, the sole non-underwear feature possessed by the instant shorts is a fabric weight greater than 4.2 ounces per square yard. Under normal circumstances, a garment possessing a single non-underwear feature will be classified as underwear. However, in this case we conclude that the physical attributes of the subject merchandise preclude them from being classified as underwear.

The Guidelines for the Reporting of Imported Products in Various Textile and Apparel Categories, CIE 13/88, state, at page 25, that:

The term "underwear" 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. Whether or not a garment is worn next to the body of the wearer is not a determinant; babies' diapers, for example, are so worn, as are bathing suits. Neither of these garments are customarily worn under other garments, and they are not underwear.

The instant shorts are composed of cotton denim. The denim from which the shorts have been constructed is a heavy weight variety normally associated with outerwear garments such as jeans, overalls and work uniforms. This material would be bulky and uncomfortable when worn beneath other clothing. Hence, we conclude that the instant boxer shorts would not ordinarily be worn under other garments. Accordingly, the shorts are not classifiable as underpants.

The Guidelines indicate that garments worn next to the body are not necessarily classifiable as underwear. However, we note that underwear is in fact often worn in this manner. In this case, it is unlikely that the shorts will be worn next to the skin due to the course and heavy denim used in their construction. We view this fact as additional support for our finding that the shorts should not be classified as underpants.

In NYRL 882670, we classified the instant garments as men's sleepwear. The CIE Guidelines provide, at page 24, that:

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."

NYRL 882670 classified the boxer shorts as sleepwear based upon J.C. Penney's representation that the garments would be marketed as such. However, in Penney's original ruling request we were advised that these items would also be marketed as loungewear. Similarly, in your request for reconsideration you informed this office that your clients did not specifically design the shorts as sleepwear. Rather, the use of these garments as sleepwear is only one of their possible applications.

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 garments were classifiable as shorts for the reason that they were not primarily designed for use in bed. See also HRL 954333, dated August 11, 1993 (silk boxer shorts designed for use as loungewear are classifiable as men's shorts, not sleepwear). As the instant items are also multi-purpose garments suitable for use as loungewear in and around the home, they are properly classified as men's shorts.

HOLDING:

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 ad valorem. The textile quota category is 347.

This notice to you should be considered a modification of NYRL 882670 under 19 CFR 177.9(d)(1). We recognize that pending transactions may be adversely affected by this modification, in that current contracts for importations arriving at a port subsequent to this decision will be classified pursuant to it. If such a situation arises, your client may, at its discretion, notify this office and apply for relief from the binding effects of this decision as may be warranted by the circumstances. However, please be advised that in some instances involving import restraints, such relief may require separate approvals from other government agencies.

Sincerely,

John Durant, Director

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