CLA-2 CO:R:C:T 954123 ch
District Director
Building 178
Room 3308
Kennedy Airport Area
Jamaica, New York 11430
RE: Application for further review of Protest No. 1001-93-
102029 under 19 U.S.C., section 1514(c)(2);
classification of men's woven cotton flannel boxer
shorts from Hong Kong; sleepwear; outerwear; underwear.
Dear Sir:
This is a decision on application for further review of a
protest timely filed by Sidney N. Weiss, Esq. on behalf of
Bolero, Inc. against your notice of redelivery issued on March
10, 1993. We have considered the protest and our decision
follows.
FACTS:
The sample submitted is a size medium pair of men's woven
cotton flannel boxer shorts, which is representative of styles
designated as 4500 and 4502. It features a fully elasticized
waistband, a fly front opening with a one button closure, and
cuffs of contrasting color. The garment measures 19 inches from
the top of the waistband to its cuffed bottom; 14 inches across
the relaxed waist; 12 1/2 inches across a single leg opening.
The fly front does not break the waistband. This article does
not possess belt loops, inner or outer pockets or a lining.
The instant merchandise was entered as undershorts pursuant
to subheading 6207.91.3020, HTSUSA, subject to textile category
352. Customs appraised the merchandise as shorts under
subheading 6203.42.4050, HTSUSA, subject to textile category 347,
and issued a redelivery notice to the protestant for failure to
tender the required visa.
ISSUE:
What is the proper tariff classification for the instant
garment?
LAW AND ANALYSIS:
Generally, we classify boxer shorts as either underwear,
sleepwear or shorts on a case-by-case basis. See Headquarters
Ruling Letter (HRL) 953408, dated June 11, 1993; 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 this case, the garment possess an enclosed waistband and
a side length of 19 inches. Hence, there arises a presumption
that it is not underwear. The presence of cuffed leg bottoms
supports this conclusion, as undershorts do not commonly feature
cuffs. Due to the side length and cuffed legs the garment would
be visible if worn beneath a typical pair of outerwear shorts.
These features would also tend to render this item bulky and
uncomfortable at the mid-thigh if worn under a pair of trousers.
In the absence of marketing or other information tending to
establish that this article is principally designed for use as
underwear, we shall classify it as an outerwear garment.
The protestant has submitted letters from its retail
clientele, advertisements featuring the instant garment and a
newspaper article discussing recent fashion trends. These
documents have been submitted to rebut the presumption that the
merchandise is not classifiable as underwear.
Four of protestant's clients have filed single page letters.
Each correspondent states that the garment will be marketed as
underwear and not as sleepwear or outerwear. Three of the
letters aver that the garment will be sold through the retailer's
underwear department. Although these submissions are entitled to
some deference, in this instance we conclude that they do not, in
and of themselves, rebut the presumption that the garment is not
underwear. We note that the letters contain one or two sentence
conclusions that the article is underwear without stating the
basis for this finding. Furthermore, we are of the opinion that
it is unlikely that the boxer shorts will be principally used as
underwear based upon its physical attributes. Therefore, more in
the way of evidence is required to rebut this presumption.
The advertisements which display the garment provide insight
as to how it is actually being marketed. This material contains
such language as "flannel boxers," "a great selection of plaid
patterns in comfortably soft, warm cotton flannel," "cotton
flannel boxers." Protestant notes that there is no suggestion
that the shorts are to be worn as outerwear. In addition,
counsel argues that this language supports the classification of
this article as underwear.
However, we find that this material does not explicitly or
implicitly encourage the consumer to use the merchandise as
underwear. At best, the advertising leaves the use of the shorts
to the consumer. In point of fact, the garment is pictured next
to pajamas and bathrobes in one instance, and is actually worn as
outerwear for use around the home in another. We conclude that
the garment is being marketed in such a manner so as to suggest
to the consumer a variety of uses which include but are not
limited to underwear. Hence, the submitted marketing information
does not rebut the presumption that the boxer shorts are not
underwear.
Finally, counsel has submitted a newspaper article from the
New York Times, dated September 12, 1993, by John Marchese. This
piece notes that in today's fashion climate boxer shorts worn
beneath outerwear are often intentionally left visible for public
scrutiny:
Context: Underwear is uncovered and boxer shorts are
back. Once, nothing came between us and our Calvins.
Now, it's what's between that matters.
* * *
"The interpretation of underwear waistbands sticking
out of pants is that it really was coming out of prison
style," Mr. Martin said. "Prisoners are not allowed to
wear belts so they can't hang themselves. So their
pants are always falling down a little. Urban youth
saw men in prison, and the style was picked up in city
life in the last two years or so."
Possible Variation: What the associate curator of the
Costume Institute, Harold Koda, calls "the reverse
Marky Mark" -- the bottoms of boxer shorts sticking out
below cutoffs.
In light of this trend, counsel urges us to expand the underwear
classification to include garments which may be exposed to public
scrutiny.
We recognize that the instant garment may be worn beneath
other garments as a fashion statement. However, we conclude that
it will not principally be used in that manner. Based upon the
physical characteristics of this pair of shorts, we find that it
is more likely that it will be used as an outerwear garment. In
addition, at this time, we are of the opinion that the trend set
forth in the New York Times article is a fugitive use for boxer
style shorts. For these reasons, we conclude that this
merchandise is 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, it
appears to be designed as a multi-purpose garment. It is
suitable for use in and around the home as loungewear, or even
for use out-of-doors. Hence, it is not primarily used as a
garment to be worn in bed.
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 merchandise was not classifiable
as sleepwear and was properly classified as shorts. As the
instant garment is also identifiable for use as loungewear, it
will be classified as a pair of shorts.
HOLDING:
Therefore, based on the foregoing discussion, you are
instructed to deny the protest in full. 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. The textile
category is 347.
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.
In accordance with Section 3A(11)(b) of Customs Directive
099 3550-065, dated August 4, 1993, Subject: Revised Protest
Directive, this decision should be mailed by your office to the
protestant no later than 60 days from the date of this letter.
Any reliquidation of the entry in accordance with the decision
must be accomplished prior to mailing of the decision. Sixty
days from the date of the decision the Office of Regulations and
Rulings will take steps to make the decision available to Customs
personnel via the Customs Rulings Module in ACS and the public
via the Diskette Subscription Service, Lexis, Freedom of
Information Act and other public access channels.
Sincerely,
John A. Durant, Director
Commercial Rulings Division