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HQ 957002




September 26, 1994

CLA-2 CO:R:C:T 957002 ch

CATEGORY: CLASSIFICATION

TARIFF NO.: 6207.11.0000

District Director
U.S. Customs
J.F.K. Airport
Building 77
Jamaica, New York 11430

RE: Application for further review of Protest No. 1001-94-105535 under 19 U.S.C., section 1514(c)(2); classification of men's and boys' woven cotton boxer shorts; applique.

Dear Sir:

This is a decision on application for further review of a protest timely filed by Grunfeld, Desiderio, Lebowitz & Silverman, on behalf of Lifeguard Apparel, Incorporated, against your notice of redelivery, dated March 9, 1994. We have considered the protest and our decision follows.

FACTS:

The submitted samples, styles B5413 and B4413, are two pairs of woven boxer shorts, composed of 55 percent cotton and 45 percent polyester, from Hong Kong. They possess hangtags identifying them as Looney Tunes Boxers from Lifeguard Underwear, Incorporated. Style B5413 is a men's size medium and features a fully elasticized enclosed waistband. It possesses a fly front with a one button closure and weighs approximately 2.8 ounces per square inch. The garment measures approximately 15 inches from the top of the waistband to its hemmed bottom; 12 3/4 inches across the relaxed waist; 12 3/4 inches across a single leg opening. A cartoon applique, measuring approximately 5 inches by 2 inches, is affixed 2 inches above the bottom of the left leg at the front of the garment. The article does not possess belt loops, inner or outer pockets or a lining.

Style B4413 is a boys' size medium (for sizes 10 through 12) and features a fully elasticized enclosed waistband. It possesses a fly front with a one button closure and weighs approximately 2.8 ounces per square inch. The garment measures approximately 15 inches from the top of the waistband to its hemmed bottom; 11 3/4 inches across the relaxed waist; 11 inches across a single leg opening. A cartoon applique, measuring approximately 3 1/4 inches by 2 1/2 inches, is affixed 2 1/2 inches above the bottom of the left leg at the front of the garment. The article does not possess belt loops, inner or outer pockets or a lining.

Styles B5413 and B4413 were entered under subheading 6207.11.0000, Harmonized Tariff Schedule of the United States (HTSUS), which provides for men's or boys' cotton underpants and briefs. However, style B5413 was classified in subheading 6203.42.4050, HTSUS, which provides for men's woven cotton shorts; and style B4413 was classified in subheading 6203.42.4060, HTSUS, as boys' woven cotton shorts.

ISSUE:

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

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, style B5413 possesses only one non-underwear feature (enclosed waistband). In addition, the hangtag lends some credence to the claim that it is marketed as an undergarment.

Style B5413 was classified as shorts due to the presence of the applique. In Headquarters Ruling Letter (HRL) 955787, dated April 26, 1994, we observed that the presence of an embroidered patch on a pair of boxer shorts supported the presumption that the garment was classifiable as shorts. This conclusion was warranted as a patch or an applique would tend to make a pair of underpants uncomfortable if worn beneath another garment. We did not mean to suggest, however, that a patch or an applique would invariably transform a garment that is otherwise classifiable as underwear into shorts. We recognize that at some point an applique would be so cumbersome so as to lead to this result. This determination must, however, be made on a case-by-case basis.

In this instance, style B5413 is lightweight and possesses the characteristics of boxer style underwear. The size, weight and pliability of the cartoon applique would not discourage one from wearing the garment in this fashion. Hence, we do not feel that the applique transforms the boxer shorts into an outerwear in this instance. Consequently, style B5413 is classifiable as a pair of men's woven cotton underpants.

In HRL 956034, we noted that the boxer short criteria were adopted with a view to adult garments. At that time, we stated that a side length of 12 inches for a child's garment would not comfortably fit beneath another garment and could be regarded as a non-underwear feature. However, we have had occasion to reconsider this finding and conclude that it is too sweeping a generalization. In HRL 956034, the shorts were extremely heavy and would be uncomfortable if worn beneath another garment. In addition, the article was described as outerwear according to certain specification sheets. For these reasons, we will not revoke HRL 956034. However, it is no longer our opinion that a side length of 12 inches or more constitutes a non-underwear feature for a child's garment. We will, of course, continue to bear in mind that garments for children are not sized for adults and this fact may affect the classification of boxer style shorts in the future.

In light of this discussion, style B4413 is substantially similar in design to style B5413 despite the fact that it has been designed for boys. The garment possesses a single non-underwear feature (enclosed waistband) and is identified as the product of Lifeguard Underwear, Incorporated. The applique is not so substantial that it converts the shorts into outerwear. Therefore, style B4413 is classifiable as boys' woven cotton underwear.

HOLDING:

Based on the foregoing discussion, this protest should be granted in full. Styles B4413 and B5413 are classifiable in subheading 6207.11.0000, HTSUS, which provides for men's or boys' woven cotton underpants and briefs. The applicable rate of duty is 6.5 percent ad valorem. The textile category is 352. 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, Freedom of Information Act and other public access channels.

Sincerely,

John A. Durant, Director
Commercial Rulings Division

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