CLA-2 CO:R:C:T 954336 ch

Julie White
Import Supervisor
Nordstrom
P.O. Box 870
Seattle, Washington 98111-0870

RE: Modification of HRL 951188; Classification of men's woven boxer shorts; underwear; sleepwear.

Dear Ms. White:

This is in response to your letter of June 3, 1993, requesting reconsideration of Headquarters Ruling Letter (HRL) 951188, dated June 2, 1992. HRL 951188 concerned the tariff classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) of certain men's woven boxer shorts. Samples were provided to this office for examination.

FACTS:

The submitted samples are six styles of men's woven boxer style shorts. Styles 200C and 200D are marketed as men's full boxers. They are composed of 100 percent cotton, and feature fully elasticized turned over waistbands, two-button closures at the waist, side vents and fly fronts without a means of closure. These garments do not possess pockets, belt loops or linings. Style 200C is a size 30, and measures approximately 14 inches from the top of its waistband to its hemmed bottom; 13 1/2 inches across the relaxed waist; 12 inches across a single leg opening. Style 200D is a size 42, and measures approximately 15 1/2 inches from the top of its waistband to its hemmed bottom; 19 inches across the relaxed waist; 15 inches across a single leg opening. Each garment weighs 3.1 ounces per square yard.

Styles 100A, 100B, 100C and 100D are marketed as men's trim boxers. Styles 100A and 100B are composed of 55 percent cotton and 45 percent polyester. Styles 100C and 100D are composed of 100 percent cotton. The four styles feature fully elasticized turned over waistbands, side vents and fly fronts with no closure. They do not possess pockets, belt loops or linings. Each garment weighs 3.4 ounces per square yard.

Style 100A is a size 30, and measures approximately 13 1/2 inches from the top of its waistband to its hemmed bottom; 12 1/2 inches across the relaxed waist; 11 inches across a single leg opening.

Style 100B is a size 32, and measures approximately 12 1/2 inches from the top of its waistband to its hemmed bottom; 12 1/2 inches across the relaxed waist; 11 inches across a single leg opening.

Style 100C is a size 34, and measures approximately 13 inches from the top of its waistband to its hemmed bottom; 13 1/2 inches across the relaxed waist; 12 inches across a single leg opening.

Style 100D is a size 38, and measures approximately 14 inches from the top of its waistband to its hemmed bottom; 15 inches across the relaxed waist; 13 inches across a single leg opening. In your original submission, you submitted catalogue advertisements depicting the full cut garments with other garments in the Nordstrom sleepwear collection. In addition, the trim boxer shorts were promoted with various apparel from the men's furnishings department. However, you have supplemented these items with photographs which indicate that the boxers are sold alongside men's underpants. Moreover, the boxers are packaged in a wrapping identical to that used to package other Nordstrom underpants.

In HRL 951188, we classified this merchandise as men's woven cotton sleepwear, pursuant to subheading 6207.91.3010, HTSUSA. The applicable textile category for this subheading is 351.

ISSUE:

Whether the instant boxer shorts are classifiable under subheading 6207.11.0000, HTSUSA, which provides for men's woven cotton underpants; or subheading 6207.91.3010, HTSUSA, which provides for men's woven cotton sleepwear?

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. 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 HRL 951188, we stated:

In this instance, Styles 200A, 200C, and 200D all contain double button closures which are uncommon in underpants. Style 100A, 100B, 100C, and 100D all contain an enclosed waistband. Due to the double button closures and the enclosed waistbands, the garments would be uncomfortable and cumbersome if worn under outerwear. Also the weight of the fabric in style 200D is much heavier than the fabric generally used for men's underpants. Finally, the importer submitted catalog pages that depicted these garments in both the men's furnishings department and in the men's sleepwear collection. Consequently, the samples are classifiable as sleep bottoms.

However, the double button closures referred to are located at the waistband. Pursuant to the criteria cited in HRL 087940, only closures located at the fly are indicative of a non- underwear garment.

Moreover, style 200D weighs 3.1 ounces per square yard. This is well below the threshold of 4.2 ounces per square yard which we consider to be indicative of non-underwear garments.

Thus, the sole non-underwear feature which the instant boxer shorts possess are enclosed waistbands. As these articles do not possess two of the non-underwear features enumerated above, they are presumptively underwear. See HRL 953005, dated December 24, 1992.

In HRL 951188, we were influenced by catalog advertisements which depicted the boxer shorts alongside pajamas, sleepwear and other outerwear garments. However, the photographs you have submitted reveal that the instant merchandise is in fact sold in the men's underwear department. Indeed, they are packaged in a wrapping identical to that used to package other Nordstrom underwear. Therefore, we will disregard the contradictory advertising materials we have received and shall classify the garments according to their design features. Accordingly, the instant garments are classifiable as men's woven underwear.

HOLDING:

The subject merchandise is classifiable under subheading 6207.11.0000, HTSUSA, which provides for men's or boys' underpants and briefs: of cotton. The applicable rate of duty is 6.5 percent ad valorem. The textile quota category is 352.

This notice to you should be considered a modification of HRL 951188 under 19 CFR 177.9(d)(1).

Your request to delay the effects of this ruling letter will be addressed under separate cover.

Sincerely,

John Durant, Director