CLA-2 CO:R:C:T 953408 ch
Indie K. Singh, Esquire
Singer & Singh
469 Seventh Avenue
Suite 1300
New York, New York 10018
Re: HRL 951912 affirmed; Men's cotton flannel boxer shorts;
underwear; sleepwear.
Dear Ms. Singh:
This is in response to your letter of February 3, 1993,
requesting that we reconsider our decision in Headquarters Ruling
Letter (HRL) 951912, dated August 27, 1992. In that ruling, we
classified certain cotton flannel boxer shorts as sleepwear,
pursuant to subheading 6207.91.3010, Harmonized Tariff Schedule
of the United States Annotated (HTSUSA). Per our request, you
have furnished this office with two samples, which you aver are
representative of the merchandise at issue. Please reference
your client, Host Apparel, Incorporated.
FACTS:
In HRL 951912, we described the merchandise as follows:
The merchandise at issue consists of two pairs of men's
boxer shorts made from woven cotton flannel. Both
samples have a fully elasticized waistband with the
elastic exposed on the interior surface. In addition,
both samples have a fly front opening that does not
break the waistband and measure 16 1/2 inches from the
top of the waistband to the hemmed bottom. One sample
has a button closure at the fly; the other has no
closure. The garments have not yet been assigned style
numbers.
The original binding ruling request filed on behalf of Host
Apparel, dated March 26, 1992, contained the following statement:
Host Apparel Inc. specializes in sleepwear and these
garments will be distributed as such.
In addition, one of the submitted samples features a label
which reads as follows:
Diplomat
Your Guarantee of Sleeping Comfort
ISSUE:
Whether the instant boxer shorts are classifiable under
subheading 6207.91.3010, which provides for men's cotton
sleepwear; or subheading 6207.11.0000, which provides for men's
underpants or briefs?
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 your written submissions, you contend that the instant
boxer shorts do not possess any of the features enumerated above.
Therefore, the boxer shorts are presumptively underwear. In
addition, you note that we have classified substantially similar
boxer shorts as underwear in the past. In light of this
precedent, you argue that the instant garments must also be
classified as underwear.
For the sake of argument, we will assume that the subject
merchandise does not possess two or more of the features
enumerated above. Therefore, the shorts are presumptively
underwear. However, in this case we find that this presumption
has been rebutted.
As noted above, Host's original binding ruling request
contained a statement that it specialized in sleepwear and that
the shorts would be distributed as such. This statement
indicates that classification of the merchandise as underwear
would not reflect its intended use. Although you have submitted
purchase orders which, you state, reflect orders for the
merchandise from the underwear departments of various retailers,
this evidence alone does not establish that the shorts will be
marketed as such. Indeed, at least one of the submitted samples
is clearly marketed as sleepwear, as evidenced by the legend
"Your Guarantee of Sleeping Comfort" found on its label.
Therefore, we conclude that the principal use of the instant
boxer shorts is as sleepwear.
We note that the principal use of a multiple use garment may
vary from case-to-case. Boxer shorts may be worn as either
underwear, sleepwear or shorts, depending upon its physical
attributes and marketing. In this case, the shorts possess
features rendering them suitable for use as either underwear or
sleepwear. In this situation, the marketing of the merchandise
bears directly on the issue of principal use. As the instant
shorts are marketed as sleepwear, we find that they are
principally used as sleepwear. However, the identical
merchandise could be classified as underwear if they were
marketed as such. Therefore, where tariff classification is
controlled by the use of the article, we are not bound to
classify similar merchandise under identical headings of the
tariff schedule.
HRL 951912 was correctly decided based upon the applicable
headings and legal notes, and is hereby affirmed.
HOLDING:
The subject merchandise is classifiable under subheading
6207.91.3010, HTSUSA, which provides for men's or boys' singlets
and other undershirts, underpants, briefs, nightshirts, pajamas,
bathrobes, dressing gowns and similar articles: other: of
cotton: other: sleepwear. The applicable rate of duty is 6.5
percent ad valorem. The textile quota category is 351.
Sincerely,
John Durant, Director