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HQ 088139


October 3, 1991

CLA-2 CO:R:C:T 088139 CRS

CATEGORY: CLASSIFICATION

TARIFF NO.: 6103.42.1050

Mr. Bhorani Nissaisorakarn
Deputy Director
Thai Trade Center, N.Y.
Royal Thai Embassy
5 World Trade Center
Suite 2447
New York, NY 10048

RE: Boxer shorts; knit; underwear; outerwear; HRL 087940; HRL 950265.

Dear Mr. Nissaisorakarn:

This is in reply to your letter dated September 27, 1990, on behalf of S.N. Imperial Garment Ltd., in which you requested a tariff classification ruling under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). A sample was submitted for examination and is described below. We regret the delay in responding to your request.

FACTS:

The article in question is a pair of 100 percent knit cotton boxer style shorts manufactured in Thailand. The sample has a 1 inch turned over or enclosed waistband, a fly front and is made from jersey knit fabric printed in a paisley pattern. The size of the garment is not stated.

ISSUE:

The issue presented is whether the article in question is classifiable as underwear or as outerwear.

LAW AND ANALYSIS:

Two headings are potentially applicable to the garment in question: heading 6107, HTSUSA, which provides for, inter alia, men's or boys' knit underpants; and heading 6103, which provides for, inter alia, men's and boys' shorts. The instant garment has an enclosed or turned over waistband, a feature that is not commonly found on men's underwear. Headquarters Ruling Letter (HRL) 087940 dated September 16, 1991. In addition, it is made from knit fabric whereas men's boxer short underwear is typically made from woven fabric. Consequently, Customs considers the instant boxer shorts to be a class or kind of merchandise separate and distinct from men's underpants of heading 6107. But see HRL 950326 dated September 26, 1991.

We are aware that boxer shorts similar to the garment in question are worn as outerwear by both men and women. HRL 087940. The instant garment is sized for men. Since you have submitted no evidence to suggest that the garment at issue will be advertised or sold as underwear we presume that it will be worn as outerwear. Accordingly, it is classifiable in heading 6103.

HOLDING:

The boxer shorts in question are classifiable in subheading 6103.42.1050, HTSUSA, under the provision for men's or boys' suits, ensembles...and shorts...knitted or crocheted; trousers, bib and brace overalls, breeches and shorts; of cotton; trousers, breeches and shorts; shorts; men's. They are dutiable at the rate of 17.1 percent ad valorem and are subject to textile category 347.

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,

John Durant, Director

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