HQ 954123

December 17, 1993

CLA-2 CO:R:C:T 954123 ch

CATEGORY: Classification

TARIFF NO.: 6203.42.4050

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