CLA-2 CO:R:C:T 954404 ch

Patrick D. Gill, Esquire
Rode & Qualey
295 Madison Avenue
New York, New York 10017

Re: Classification of men's woven silk shorts from China; underwear; sleepwear; loungewear.

Dear Mr. Gill:

This is in response to your letter of May 18, 1993, requesting tariff classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) for two styles of men's silk boxer shorts. Samples were provided to this office for examination and will be returned to you under separate cover. Please reference your client, Antara.


The submitted samples are two styles of men's woven silk boxer shorts, designated LH 66 and BR-818. Style LH 66 is a size medium, and measures approximately 18 inches from the top of its waistband to its hemmed bottom; 13 1/2 inches across the relaxed waist; 13 inches across a single leg opening. It features a fully elasticized enclosed waistband, a two button closure at the waistband and a placketed fly front opening with a two button closure. The fly front breaks the waistband. This garment does not feature pockets, belt loops or a lining.

Style BR-818 is a size extra large and measures approximately 17 inches from the top of its waistband to its hemmed bottom; 12 inches across the relaxed waist; 11 1/2 inches across a single leg opening. It has a fully elasticized waistband with an exterior drawstring and a placketed fly front opening with a one button closure. The fly front does not break the waistband. The garment has side seam and rear pockets.

You state that both styles are bought, sold, invoiced and marketed as a men's jam short. ISSUE:

What are the proper tariff classifications for styles LH 66 and BR-818?


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.

Style LH 66 features a multi-button closure, a side length for a size medium of more than 17 inches and an enclosed waistband. Style BR-818 possesses side seam and rear pockets and an enclosed waistband. Hence, there arises a presumption that both garments are not underwear. The design and appearance of these articles support this conclusion. In addition, based upon your representations they are not marketed as underpants. Accordingly, the garments are not classifiable as underwear.

The Guidelines for the Reporting of Imported Products in Various Textile and Apparel Categories, CIE 13/88, state, at page 24:

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." Although the instant shorts may be worn to bed, they appear to be designed as multi-purpose garments. They are suitable for use in and around the home as loungewear, or even out of doors. Hence, they are not primarily used as garments to be worn in bed and are not classifiable as sleepwear.

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.

Accordingly, we found that the garments were properly classified as shorts. As the instant garments are also multi-purpose articles suitable for use as loungewear or out-of-doors, they will be classified as shorts.


The subject merchandise, styles LH 66 and BR-818, are classifiable under subheading 6203.49.3050, HTSUSA, which provides for men's woven silk shorts containing 70 percent or more by weight of silk or silk waste. The applicable rate of duty is 3 percent ad valorem.

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.


John Durant, Director