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