CLA-2 CO:R:C:T 954333 ch
Robert T. Stack, Esquire
Siegel, Mandell & Davidson, P.C.
One Astor Plaza
1515 Broadway
43rd Floor
New York, New Work 10036
Re: Classification of men's woven silk shorts from China;
underwear; sleepwear; loungewear.
Dear Mr. Stack:
This is in response to your letter of May 13, 1993,
requesting tariff classification under the Harmonized Tariff
Schedule of the United States Annotated (HTSUSA) for two styles
of men's silk boxer shorts. Samples were provided to this office
for examination and will be returned to you under separate cover.
Please reference your clients Intimo, Incorporated and Enzy
Trading and Development.
FACTS:
The submitted samples, styles 170000 (burgundy) and 174992
(printed), are size extra large men's woven silk boxer shorts.
They are essentially identical except for color. These garments
feature fully elasticized tunnel waistbands with functional
interior drawstrings. They possess placketed fly front openings
with one button closures. Each sample has side seam pockets, a
rear pocket and side vents. They measure approximately 19 inches
from the top of the waistband to the hemmed bottom; 15 inches
across the relaxed waist; 15 inches across a single leg opening.
You have enclosed pages 25 through 27 of Intimo's "Max Deco"
Spring 1993 Catalog, which describe the subject merchandise as
"boxer jams, solids, sandwashed: three pocket pleated pant with
both elastic and drawstring waistband."
ISSUE:
What is the proper tariff classification for the subject
merchandise?
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 additional
criteria such as marketing or other physical attributes are
determinative.
In this case, the shorts possess enclosed waistbands and
feature three outer pockets. Hence, the garments are
presumptively not underwear. The design and appearance of these
articles support this conclusion. In addition, they do not
appear to be marketed as underpants. Accordingly, the garments
are 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,
they appear to be designed as multi-purpose garments. They are
suitable for use in and around the home as loungewear, or even
out of doors. Hence, they are not primarily used as garments to
be worn in bed and are not classifiable as sleepwear.
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.
Accordingly, we found that the garments were properly classified
as shorts. As the instant garments are also multi-purpose
articles suitable for use as loungewear or out-of-doors, they
will be classified as shorts.
HOLDING:
The subject merchandise, styles 170000 and 174992, are
classifiable under subheading 6203.49.3050, HTSUSA, which
provides for men's woven silk shorts containing 70 percent or
more by weight of silk or silk waste. The applicable rate of
duty is 3 percent ad valorem.
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