CLA-2 CO:R:C:T 954336 ch
Julie White
Import Supervisor
Nordstrom
P.O. Box 870
Seattle, Washington 98111-0870
RE: Modification of HRL 951188; Classification of men's
woven boxer shorts; underwear; sleepwear.
Dear Ms. White:
This is in response to your letter of June 3, 1993,
requesting reconsideration of Headquarters Ruling Letter (HRL)
951188, dated June 2, 1992. HRL 951188 concerned the tariff
classification under the Harmonized Tariff Schedule of the United
States Annotated (HTSUSA) of certain men's woven boxer shorts.
Samples were provided to this office for examination.
FACTS:
The submitted samples are six styles of men's woven boxer
style shorts. Styles 200C and 200D are marketed as men's full
boxers. They are composed of 100 percent cotton, and feature
fully elasticized turned over waistbands, two-button closures at
the waist, side vents and fly fronts without a means of closure.
These garments do not possess pockets, belt loops or linings.
Style 200C is a size 30, and measures approximately 14 inches
from the top of its waistband to its hemmed bottom; 13 1/2 inches
across the relaxed waist; 12 inches across a single leg opening.
Style 200D is a size 42, and measures approximately 15 1/2 inches
from the top of its waistband to its hemmed bottom; 19 inches
across the relaxed waist; 15 inches across a single leg opening.
Each garment weighs 3.1 ounces per square yard.
Styles 100A, 100B, 100C and 100D are marketed as men's trim
boxers. Styles 100A and 100B are composed of 55 percent cotton
and 45 percent polyester. Styles 100C and 100D are composed of
100 percent cotton. The four styles feature fully elasticized
turned over waistbands, side vents and fly fronts with no
closure. They do not possess pockets, belt loops or linings.
Each garment weighs 3.4 ounces per square yard.
Style 100A is a size 30, and measures approximately 13 1/2
inches from the top of its waistband to its hemmed bottom; 12 1/2
inches across the relaxed waist; 11 inches across a single leg
opening.
Style 100B is a size 32, and measures approximately 12 1/2
inches from the top of its waistband to its hemmed bottom; 12 1/2
inches across the relaxed waist; 11 inches across a single leg
opening.
Style 100C is a size 34, and measures approximately 13
inches from the top of its waistband to its hemmed bottom; 13 1/2
inches across the relaxed waist; 12 inches across a single leg
opening.
Style 100D is a size 38, and measures approximately 14
inches from the top of its waistband to its hemmed bottom; 15
inches across the relaxed waist; 13 inches across a single leg
opening.
In your original submission, you submitted catalogue
advertisements depicting the full cut garments with other
garments in the Nordstrom sleepwear collection. In addition, the
trim boxer shorts were promoted with various apparel from the
men's furnishings department. However, you have supplemented
these items with photographs which indicate that the boxers are
sold alongside men's underpants. Moreover, the boxers are
packaged in a wrapping identical to that used to package other
Nordstrom underpants.
In HRL 951188, we classified this merchandise as men's woven
cotton sleepwear, pursuant to subheading 6207.91.3010, HTSUSA.
The applicable textile category for this subheading is 351.
ISSUE:
Whether the instant boxer shorts are classifiable under
subheading 6207.11.0000, HTSUSA, which provides for men's woven
cotton underpants; or subheading 6207.91.3010, HTSUSA, which
provides for men's woven cotton sleepwear?
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. 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 HRL 951188, we stated:
In this instance, Styles 200A, 200C, and 200D all
contain double button closures which are uncommon in
underpants. Style 100A, 100B, 100C, and 100D all
contain an enclosed waistband. Due to the double
button closures and the enclosed waistbands, the
garments would be uncomfortable and cumbersome if worn
under outerwear. Also the weight of the fabric in
style 200D is much heavier than the fabric generally
used for men's underpants. Finally, the importer
submitted catalog pages that depicted these garments in
both the men's furnishings department and in the men's
sleepwear collection. Consequently, the samples are
classifiable as sleep bottoms.
However, the double button closures referred to are located at
the waistband. Pursuant to the criteria cited in HRL 087940,
only closures located at the fly are indicative of a non-
underwear garment.
Moreover, style 200D weighs 3.1 ounces per square yard.
This is well below the threshold of 4.2 ounces per square yard
which we consider to be indicative of non-underwear garments.
Thus, the sole non-underwear feature which the instant boxer
shorts possess are enclosed waistbands. As these articles do not
possess two of the non-underwear features enumerated above, they
are presumptively underwear. See HRL 953005, dated December 24,
1992.
In HRL 951188, we were influenced by catalog advertisements
which depicted the boxer shorts alongside pajamas, sleepwear and
other outerwear garments. However, the photographs you have
submitted reveal that the instant merchandise is in fact sold in
the men's underwear department. Indeed, they are packaged in a
wrapping identical to that used to package other Nordstrom
underwear. Therefore, we will disregard the contradictory
advertising materials we have received and shall classify the
garments according to their design features. Accordingly, the
instant garments are classifiable as men's woven underwear.
HOLDING:
The subject merchandise is classifiable under subheading
6207.11.0000, HTSUSA, which provides for men's or boys'
underpants and briefs: of cotton. The applicable rate of duty
is 6.5 percent ad valorem. The textile quota category is 352.
This notice to you should be considered a modification of
HRL 951188 under 19 CFR 177.9(d)(1).
Your request to delay the effects of this ruling letter will
be addressed under separate cover.
Sincerely,
John Durant, Director