CLA-2 CO:R:C:T 954404 ch
Patrick D. Gill, Esquire
Rode & Qualey
295 Madison Avenue
New York, New York 10017
Re: Classification of men's woven silk shorts from China;
underwear; sleepwear; loungewear.
Dear Mr. Gill:
This is in response to your letter of May 18, 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 client, Antara.
FACTS:
The submitted samples are two styles of men's woven silk
boxer shorts, designated LH 66 and BR-818. Style LH 66 is a size
medium, and measures approximately 18 inches from the top of its
waistband to its hemmed bottom; 13 1/2 inches across the relaxed
waist; 13 inches across a single leg opening. It features a
fully elasticized enclosed waistband, a two button closure at the
waistband and a placketed fly front opening with a two button
closure. The fly front breaks the waistband. This garment does
not feature pockets, belt loops or a lining.
Style BR-818 is a size extra large and measures
approximately 17 inches from the top of its waistband to its
hemmed bottom; 12 inches across the relaxed waist; 11 1/2 inches
across a single leg opening. It has a fully elasticized
waistband with an exterior drawstring and a placketed fly front
opening with a one button closure. The fly front does not break
the waistband. The garment has side seam and rear pockets.
You state that both styles are bought, sold, invoiced and
marketed as a men's jam short. ISSUE:
What are the proper tariff classifications for styles LH 66
and BR-818?
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.
Style LH 66 features a multi-button closure, a side length
for a size medium of more than 17 inches and an enclosed
waistband. Style BR-818 possesses side seam and rear pockets and
an enclosed waistband. Hence, there arises a presumption that
both garments are not underwear. The design and appearance of
these articles support this conclusion. In addition, based upon
your representations they are not 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 LH 66 and BR-818, 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