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HQ 087938


December 13, 1990

CLA-2 CO:R:C:G 087938 CC

CATEGORY: CLASSIFICATION

TARIFF NO.: 6204.62.4055

Ms. Bernadette Lantz
The Blantz Company
717C Powell Avenue
Morgantown, WV 26505

RE: Classification of boxer style shorts; unisex garments worn as outerwear; classifiable as women's shorts in Heading 6204

Dear Ms. Lantz:

This letter is in response to your inquiry of August 11, 1990, requesting tariff classification of boxer style shorts. A sample was submitted for examination.

FACTS:

The submitted sample is men's boxer style shorts made of 100 percent cotton woven fabric. It has a 1 inch elasticized waistband and a small pouch, which is sewn to the inside of the shorts at the bottom of the waistband and appears to be able to hold change, keys, etc. The shorts have multi-colored designs printed on them.

The submitted shorts have the following dimensions: the waist is 23 inches; the side length is 16 inches; the leg opening is 11 inches; the fly opening is 6 inches; the inseam is 5 inches; the front rise is 13 inches; the back rise is 15 inches; the side length is 16 inches; and the seat width is 23 inches.

ISSUE:

Whether the submitted boxer shorts are classifiable as underwear or outerwear?

If outerwear, whether the submitted shorts are classifiable as a men's or a women's garment?

LAW AND ANALYSIS:

Classification of merchandise under the HTSUSA is in accordance with the General Rules of Interpretation (GRI's), taken in order. GRI 1 provides that classification shall be determined according to the terms of the headings and any relative section or chapter notes.

In Headquarters Ruling Letter (HRL) 087939, dated November 29, 1990, copy enclosed, we stated that certain boxer shorts, often sold with men's underwear, were actually worn by both men and women as outerwear, based in part on information provided by the trade. In addition, their design features, e.g., the novelty print, and their dimensions, which were cut smaller than the typical men's boxer shorts, suggested they were worn as outerwear by men and women. Therefore that merchandise was not classifiable as underwear, but, instead, was classifiable as shorts. Because it was worn by both men and women, Note 8 to Chapter 62, HTSUSA, was applicable. It provides that articles of Chapter 62 which cannot be identified as either men's or boys' garments or as women's or girls' garments are to be classified in the headings covering women's or girls' garments. Therefore those articles were classifiable in Heading 6204, HTSUSA, which provides for women's and girls' shorts.

The boxer shorts at issue have several features not common to underwear. First, like the merchandise of HRL 087939, the submitted shorts have dimensions of a smaller cut than typical of men's boxer shorts. Second, the novelty print, although sometimes present on underwear, is normally indicative of outerwear. Third, they include a pouch that could hold change, etc., which is certainly not typical of underwear. The presence of these features persuades us that the submitted shorts are not classifiable as men's underwear. Similar in many ways to the merchandise of HRL 087939, they are classifiable as women's shorts in Heading 6204.

HOLDING:

The submitted boxer shorts are classifiable under subheading 6204.62.4055, HTSUSA, which provides for women's or girls' suits, ensembles, suit-type jackets, blazers, dresses, shirts, divided skirts, trousers, bib and brace overalls, breeches and shorts (other than swimwear), trousers, bib and brace overalls, breeches and shorts, of cotton, other, other, shorts, women's. The rate of duty is 17.7 percent ad valorem, and the textile category is 348.

Due to the changeable nature of the statistical annotation (the ninth and tenth digits of the classification) and the restraint (quota/visa) categories applicable to textile merchandise, you should contact your local Customs office prior to importation of this merchandise to determine the current status of any import restraints or requirements.

The designated textile and apparel category may be subdivided into parts. If so, visa and quota requirements applicable to the subject merchandise may be affected. Since part categories are the result of international bilateral agreements which are subject to frequent renegotiations and changes, to obtain the most current information available, we suggest that you check, close to the time of shipment, the Status Report On Current Import Quotas (Restraint Levels), an internal issuance of the U.S. Customs Service, which is available for inspection at your local Customs office.

Sincerely,

John Durant, Director

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