HQ 954333

August 11, 1993

CLA-2 CO:R:C:T 954333 ch

CATEGORY: Classification

TARIFF NO.: 6203.49.3050

Robert T. Stack, Esquire

Siegel, Mandell & Davidson, P.C.

One Astor Plaza

1515 Broadway

43rd Floor

New York, New Work 10036

Re: Classification of men\'s woven silk shorts from China;

underwear; sleepwear; loungewear.

Dear Mr. Stack:

This is in response to your letter of May 13, 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 clients Intimo, Incorporated and Enzy

Trading and Development.

FACTS:

The submitted samples, styles 170000 (burgundy) and 174992

(printed), are size extra large men\'s woven silk boxer shorts.

They are essentially identical except for color. These garments

feature fully elasticized tunnel waistbands with functional

interior drawstrings. They possess placketed fly front openings

with one button closures. Each sample has side seam pockets, a

rear pocket and side vents. They measure approximately 19 inches

from the top of the waistband to the hemmed bottom; 15 inches

across the relaxed waist; 15 inches across a single leg opening.

You have enclosed pages 25 through 27 of Intimo\'s \"Max Deco\"

Spring 1993 Catalog, which describe the subject merchandise as

\"boxer jams, solids, sandwashed: three pocket pleated pant with

both elastic and drawstring waistband.\"

ISSUE:

What is the proper tariff classification for the subject

merchandise?

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 this case, the shorts possess enclosed waistbands and

feature three outer pockets. Hence, the garments are

presumptively not underwear. The design and appearance of these

articles support this conclusion. In addition, they do not

appear to be 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.

HOLDING:

The subject merchandise, styles 170000 and 174992, 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.

Sincerely,

John Durant, Director