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HQ 955787


April 26, 1994

CLA-2 CO:R:C:T 955787 ch

CATEGORY: CLASSIFICATION

TARIFF NO.: 6203.42.4050

Saralee Antrim-Saizan
Carmichael International Service
256 West Ivy Avenue
Inglewood, California 90302-3394

RE: Classification of men's woven cotton boxer shorts; shorts; underwear.

Dear Ms. Antrim-Saizan:

This is in response to your letters of December 10, 1993 and December 21, 1993, requesting tariff classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) for a pair of men's woven cotton boxer shorts with carrying bag. A sample was provided to this office for examination.

FACTS:

The submitted sample is a pair of men's woven cotton boxer shorts with a cotton carrying bag. The shorts feature a fully elasticized enclosed waistband and a double layered fly front with a one button closure. It measures approximately 16 1/2 inches from the top of the waistband to its hemmed bottom. A substantial embroidery of a cartoon character is affixed on the lower left leg. Below the waistband there is an overlay in the shape of a triangle measuring approximately 4 1/2 inches by 6 inches. The garment does not possess belt loops, inner or outer pockets or a lining. In laboratory report 3-94-10633-002, the U.S. Customs laboratory in Washington, D.C. established that the fabric weight for this item is 4.26 ounces per square yard.

The carrying bag possesses a drawstring closure and is composed of woven cotton. It measures approximately 8 1/2 inches by 11 inches. The bag bears a screen print logo with the legend "Acme Boxer Co." A hangtag identifies the boxer shorts as "classic underwear." The boxer shorts are packaged inside the bag and are sold together at retail.

You have submitted a Warner Brothers Studio Store catalog depicting certain boxer shorts amongst other garments such as twill shirts, denim jackets, cotton caps and T-shirts. You indicate that Warner Stores are not separated by department. However, the boxer shorts will be placed for sale within the adults apparel area. You state that the instant garment is principally used as men's underpants and will be placed for sale with slippers, night gowns and night shirts.

ISSUE:

What is the proper tariff classification for the woven cotton boxer shorts and woven cotton carrying bag?

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 criteria such as marketing or other physical attributes are determinative. In this instance, the garment features a fabric weight greater than 4.2 ounces per square yard and an enclosed waistband. Hence, it is presumptively not underwear. We note that features such as the embroidered patch, decorative overlay and double layer of fabric on the fly placket would tend to make the shorts uncomfortable if worn beneath another garment.

The hangtag on the carrying bag states that the garment is "classic underwear." However, we are of the opinion that in and of itself this legend is insufficient to overcome the presumption that the shorts are not underwear. Based upon an inspection of the Warner Studio catalog and your representations the boxers are not otherwise marketed as underwear. Rather, the garment will be sold with nightwear such as night gowns and night shirts, or amongst outerwear garments such as shirts, caps and jackets. Consequently, the shorts are not classifiable as men's underpants.

In prior decisions, we have determined that men's boxer style shorts which may be worn in and around the home or out of doors are classified as shorts. See HRL 954404, dated August 11, 1993; HRL 954333, dated August 11, 1993. As the instant garment may be worn in this fashion, it is classifiable as a pair of men's woven cotton shorts.

In HRL 087280, dated July 16, 1990 we addressed the tariff classification of a carrying bag imported with a poncho. The carrying bag was not specially shaped or fitted to hold its contents and was suitable for repetitive use. We concluded that the poncho and the bag constituted a composite article pursuant to General Rule of Interpretation 3(b), with the poncho imparting its essential character. Similarly, in HRL 086343, dated July 13, 1990, we classified a carrying bag sold with a windbreaker as a composite article with the essential character imparted by the garment. Recently, we classified a textile drawstring bag imported with blocks as a composite article and concluded that the blocks lent the essential character to the unit. The instant carrying bag is sold as a unit with the boxer shorts. It is not specially shaped or fitted to hold its contents and is suitable for repetitive use. Based upon the foregoing precedent the carrying bag and shorts shall be classified as a composite article. The shorts lend the essential character to the unit. Accordingly, the carrying bag shall be classified with the shorts.

HOLDING:

The subject merchandise is classifiable under subheading 6203.42.4050, HTSUSA, which provides for men's or boys' 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.

The designated textile and apparel category may be subdivided into parts. If so, visa and quota requirements applicable to the subject merchandise may be affected. Since part categories are the result of international bilateral agreements which are the subject of frequent negotiations and changes, to obtain the most current information available, we suggest that you check, close to the time of shipment, the Status Report on Current Import Quotas (Restraint Levels), an issuance of the U.S. Customs Service, which is updated weekly and is available at the local Customs office.

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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