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HQ 087939


November 29, 1990

CLA-2 CO:R:C:G 087939 CRS

CATEGORY: CLASSIFICATION

TARIFF NO.: 6204.62.4055

Kit Craig Crider
Import Administrator
GAP/Banana Republic
One Harrison Street
San Francisco, CA 94105

RE: Boxer-style shorts are distinguishable from underwear based on their construction and styling; Note 8, Chapter 62.

Dear Mr. Crider:

This is in reply to your letter dated August 3, 1990, to our New York office, concerning the classification of boxer style shorts under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). A sample was submitted with your request.

FACTS:

The sample merchandise consists of a pair of men's woven, 100 percent cotton flannel shorts, style 12437. The size medium garment has a 1 inch elasticized waistband, a 5 inch fly front with snap closure, and are printed in a tartan pattern described as an "Alpine plaid." The shorts are made in the British Crown Colony of Hong Kong.

The shorts have the following dimensions: waist: 24 inches; side length: 15 inches; leg width: 13 inches; inseam: 4 inches; thigh: 13 inches; front rise: 13 inches; back rise: 15 inches; seat width: 22 inches.

ISSUE:

Whether the shorts at issue are classifiable as underwear; if outerwear, whether they are classifiable as men's or boys', or women's or girls' garments.

LAW AND ANALYSIS:

Heading 6207, HTSUSA, provides inter alia, for men's or boys' underpants. Although the instant article resembles a pair of men's boxer shorts, in Customs' view they are distinguishable from underwear on several counts.

First, the sample shorts' fly front has a snap closure, a feature not common to boxers worn as underwear. Second, the shorts at issue are cut smaller than the typical men's boxer. For example, the sample shorts (size medium) have a much smaller waist than is normal for a men's medium boxer short undergarment. Correspondingly, the measurements of the seat and thigh are slightly larger than is normal for men's boxer underwear, suggesting that the instant garment is tailored as much for women as it is for men.

Moreover, while old fashions please best, the shorts in question appear to have been styled to fit the current fashion, namely, the wearing of underwear-like garments as outerwear, sleepwear or leisurewear. Lamneck, Boxers: Inside and Out, Daily News Rec., Dec. 5, 1988, at 29. These underwear-cum- outerwear are characterized primarily by novelty prints, but also include tartan plaids, traditional patterns and conventional white boxers. While usually made of lightweight woven cotton, such garments may also be made of cotton flannel, silk, or knit cotton. Finally, although boxer-style shorts similar to those at issue may be sold in the underwear or men's department, they are frequently advertised for and purchased and worn by women. Id. at 29.

Heading 6204, HTSUSA, provides, inter alia, for women's or girls' shorts. Note 8, Chapter 62, HTSUSA, 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." Given the dimensions of the sample garment, combined with their styling, and the presence of a smaller than normal fly opening as well as a fly closure, it is Customs' opinion that the garment in question is designed for women or, alternatively, is designed as a unisex garment.

HOLDING:

The article in question is classifiable in subheading 6204.62.4055, HTSUSA, under the provision for women's or girls' suits, ensembles ... and shorts (other than swimwear), trousers, bib and brace overalls, breeches and shorts, of cotton, other, other, shorts, women's, and are dutiable at the rate of 17.7 percent ad valorem. The textile category is 348.

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.

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 your local Customs office prior to importation of this merchandise to determine the current status of any import restraints or requirements.

Sincerely,


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