CLA-2; CO:R:C:T 954074 ch
District Director
Tampa District
4430 East Adamo Drive
Suite 301
Tampa, Florida 33605
RE: Application for further review of Protest No. 1803-93-
100009 under 19 U.S.C., section 1514(c)(2); HRL 951912
affirmed; men's cotton flannel boxer shorts; underwear;
sleepwear.
Dear Madam:
The above-referenced protest was forwarded to this office
for further review. We have considered the protest and our
decision follows.
FACTS:
The instant merchandise was the subject of Headquarters
Ruling Letter (HRL) 951912, dated August 27, 1992. In that
ruling, 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 the
importer, Host Apparel, Inc., dated March 26, 1992, contained the
following statement:
Host Apparel Inc. specializes in sleepwear and these
garments will be distributed as such.
On this basis, we classified the boxer shorts as sleepwear,
pursuant to subheading 6207.91.3010, Harmonized Tariff Schedule
of the United States Annotated (HTSUSA).
On February 3, 1993, Host Apparel filed a request for
reconsideration of HRL 951912. As part of this request, Host
furnished this office with two representative samples of the
merchandise. One of the submitted samples features a label which
reads as follows:
Diplomat
Your Guarantee of Sleeping Comfort
A ruling letter disposing of Host's request for reconsideration,
designated as HRL 953408, will be issued contemporaneous with our
decision in this protest.
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 Host's written submission, it contends that the instant
boxer shorts do not possess any of the features enumerated above.
Therefore, the boxer shorts are presumptively underwear. In
addition, reference is made to prior ruling letters in which we
have classified substantially similar boxer shorts as underwear.
In light of this precedent, Host argues 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 Host has submitted
purchase orders which, it states, 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. Accordingly, the subject
merchandise is properly classified 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. Hence, 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.
HOLDING:
Therefore, based on the foregoing discussion, this protest
should be denied. The subject merchandise is properly classified
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.
A copy of this decision should be attached to the CF 19
Notice of Action to satisfy the notice requirement of section
174.30(a), Customs Regulations.
Sincerely,
John A. Durant, Director