CLA-2 CO:R:C:T 954632 ch
Jonathan M. Fee, Esquire
Grunfeld, Desiderio, Lebowitz
& Silverman
1201 West Peachtree Street, N.E.
Atlanta, Georgia 30309
Re: Modification of NYRL 882670; classification of mens'
woven cotton denim boxer shorts; sleepwear; underwear;
denim.
Dear Mr. Fee:
This is in response to your letter of July 14, 1993,
requesting reconsideration of New York Ruling Letter (NYRL)
882670, dated March 5, 1993. NYRL 882670 concerned the tariff
classification, under the Harmonized Tariff Schedule of the
United States Annotated (HTSUSA), of two pairs of mens' woven
boxer shorts. Please reference your clients, J.C. Penney
Purchasing Corporation and Smart Shirts Limited.
FACTS:
The submitted samples are two pairs of cotton denim boxer
shorts. The shorts, both designated as style 505-4300, are
almost identical, with the exception that one is solid blue and
the other is blue and white striped. You indicate that their
fabric weight is approximately 6.0 ounces per square yard. These
articles feature a fully elasticized waistband with the elastic
exposed on the interior surface and a one button closure. They
do not possess belt loops, inner or outer pockets or a lining.
Each sample measures approximately 14 inches across the
relaxed waist; 16 1/2 inches from the top of the waistband to the
hem bottom; 13 inches across a single leg opening.
In New York Ruling Letter (NYRL) 882670, dated March 5,
1993, the instant boxer shorts were classified under subheading
6207.91.3010, HTSUSA, which provides for men's woven cotton
sleepwear. This conclusion was premised upon the representation
that the shorts would be marketed through the Mens Sleepwear
department of J.C. Penney stores. However, J.C. Penney also
indicated that the merchandise was intended for use as both
loungewear and sleepwear.
ISSUE:
Whether the instant boxer shorts are classifiable under
subheading 6207.11.0000, HTSUSA, which provides for men's woven
cotton underpants and briefs; or subheading 6207.91.3010, HTSUSA,
which provides for men's woven cotton sleepwear; or subheading
6203.42.4050, HTSUSA, which provides for men's woven cotton
shorts?
LAW AND ANALYSIS:
Classification of goods under the HTSUSA is governed by the
General Rules of Interpretation (GRI). GRI 1 provides that
classification is determined first in accordance with the terms
of the headings of the tariff and any relative section or chapter
notes. Where goods cannot be classified on the basis of GRI 1,
the remaining GRI will be applied in order.
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 Headquarters Ruling Letter (HRL)
954336, dated September 27, 1993; HRL 953487, dated April 22,
1993; 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 this instance, the sole non-underwear feature possessed by the
instant shorts is a fabric weight greater than 4.2 ounces per
square yard. Under normal circumstances, a garment possessing a
single non-underwear feature will be classified as underwear.
However, in this case we conclude that the physical attributes of
the subject merchandise preclude them from being classified as
underwear.
The Guidelines for the Reporting of Imported Products in
Various Textile and Apparel Categories, CIE 13/88, state, at page
25, that:
The term "underwear" refers to garments which are
ordinarily worn under other garments and are not
exposed to view when the wearer is conventionally
dressed for appearance in public, indoors or out-of-
doors. Whether or not a garment is worn next to the
body of the wearer is not a determinant; babies'
diapers, for example, are so worn, as are bathing
suits. Neither of these garments are customarily worn
under other garments, and they are not underwear.
The instant shorts are composed of cotton denim. The denim from
which the shorts have been constructed is a heavy weight variety
normally associated with outerwear garments such as jeans,
overalls and work uniforms. This material would be bulky and
uncomfortable when worn beneath other clothing. Hence, we
conclude that the instant boxer shorts would not ordinarily be
worn under other garments. Accordingly, the shorts are not
classifiable as underpants.
The Guidelines indicate that garments worn next to the body
are not necessarily classifiable as underwear. However, we note
that underwear is in fact often worn in this manner. In this
case, it is unlikely that the shorts will be worn next to the
skin due to the course and heavy denim used in their
construction. We view this fact as additional support for our
finding that the shorts should not be classified as underpants.
In NYRL 882670, we classified the instant garments as men's
sleepwear. The CIE Guidelines provide, at page 24, that:
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."
NYRL 882670 classified the boxer shorts as sleepwear based
upon J.C. Penney's representation that the garments would be
marketed as such. However, in Penney's original ruling request
we were advised that these items would also be marketed as
loungewear. Similarly, in your request for reconsideration you
informed this office that your clients did not specifically
design the shorts as sleepwear. Rather, the use of these
garments as sleepwear is only one of their possible applications.
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.
On this basis, we found that the garments were classifiable as
shorts for the reason that they were not primarily designed for
use in bed. See also HRL 954333, dated August 11, 1993 (silk
boxer shorts designed for use as loungewear are classifiable as
men's shorts, not sleepwear). As the instant items are also
multi-purpose garments suitable for use as loungewear in and
around the home, they are properly classified as men's shorts.
HOLDING:
The subject merchandise is classifiable under subheading
6203.42.4050, HTSUSA, which provides for men's or boys' suits,
ensembles, suit-type jackets, blazers, trousers, bib and brace
overalls, breeches and shorts (other than swimwear): 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.
This notice to you should be considered a modification of
NYRL 882670 under 19 CFR 177.9(d)(1). We recognize that pending
transactions may be adversely affected by this modification, in
that current contracts for importations arriving at a port
subsequent to this decision will be classified pursuant to it.
If such a situation arises, your client may, at its discretion,
notify this office and apply for relief from the binding effects
of this decision as may be warranted by the circumstances. However, please be advised that in some instances involving
import restraints, such relief may require separate approvals
from other government agencies.
Sincerely,
John Durant, Director