HQ 0954074 - 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. - United States International Trade Commision Rulings

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HQ 954074

June 11, 1993

CLA-2; CO:R:C:T 954074 ch

CATEGORY: CLASSIFICATION

TARIFF NO.: 6207.91.3010

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

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