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HQ 950266


October 28,1991

CLA-2 CO:R:C:T 950266 SK

CATEGORY: CLASSIFICATION

TARIFF NO.: 6207.11.0000

Mr. Robert J. Mele
CSI Industries, Inc.
450 Winks Lane
Bensalem, PA 19020

RE: Classification of 100% cotton boxer shorts; outerwear v. underwear; men's v. unisex; 6207, HTSUSA

Dear Mr. Mele:

This is in response to your letter of August 2, 1991, requesting a binding classification ruling with regard to cotton boxer shorts. A sample was submitted for Customs' examination and will be returned under separate cover.

FACTS:

The submitted sample is a pair of 100% woven cotton boxer shorts. The garment has a fully elasticized fabric-covered waistband and a fly front opening with a one-button closure. The fly front breaks the waistband which has a two button closure. The outseam from the top of the waistband to the hem measures approximately 16 1/2 inches. The garment is labeled a size medium and indicates it will fit a size 32 inch waist. The garment will come in sizes small, medium, large and extra large. The distribution ratio of each size that will be offered for sale is 2 small, 4 medium, 4 large and 2 extra large. This merchandise will be sold in men's departments, but in stores that sell both men's and women's clothes. The garments will be manufactured in the Philippines, Hong Kong and China.

ISSUE:

Whether the article at issue is classifiable under heading 6207 of the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) which provides for men's or boys' underpants, or under heading 6203, HTSUSA, which provides for, inter alia, men's shorts?

LAW AND ANALYSIS:

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

Recent fashion trends indicate that boxer shorts may be worn as either underwear or outerwear, by both men and women. Customs acknowledges that the fact that boxer shorts can be worn as outerwear is not determinative of their classification. Customs will not rely on principal use to determine classification of these garments, but rather classification shall be governed by GRI 1 as set forth above. Those garments that have the characteristics of men's underpants will be classified as such. Customs' policy with regard to the classification of boxer shorts requires a case by case analysis and employs criteria that make realistic distinctions between outerwear and underwear possible. See Headquarters Ruling Letter (HRL) 087940 of September 16, 1991.

Several characteristics determine whether a garment is underwear or outerwear and whether the garment is for men or unisex in nature. The following features are 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.

No information regarding the submitted sample's weight per square yard was provided. The garment has a fly, but no lining nor belt loops. The leg openings are only marginally larger than the garment's relaxed waist: the leg openings measure 27 1/2 inches and the relaxed waist is 27 inches. The side length of
the size medium sample measures 16 1/2 inches. The features this article contains which are indicative of outerwear are the overturned waistband and the fact that the leg openings are just slightly larger than the relaxed waist. Usually the presence of more than one of the features listed above gives rise to a rebuttable presumption that the garment is outerwear or a unisex garment rather than men's underwear. Additional criteria such as marketing, size specifications and other physical attributes of the garment may be considered to refute this presumption.

Customs notes that the fabric used in this garment's construction is quite thin and not of the weight traditionally used for men's outerwear shorts. Moreover, these articles will be displayed in the men's departments of stores which sell both men's and women's clothing. Although women could potentially be purchasers of this item, a rack top sign will be placed above the merchandise advertising the item as "Men's Boxer Shorts". The fact that the article's material is too thin for men's outerwear, the store's advertising specifically refers to these garments as boxer shorts, and the article's leg opening is only a fraction larger than the garment's relaxed waist, is indicative of the garment's status as men's underwear and effectively rebuts any presumption that this article is outerwear as arrived at by applying the enumerated distinctions set forth supra.

With regard to the issue of whether this article is for men or unisex, Customs uses several criteria to determine this issue. Customs has received size specifications supplied by three domestic underwear producers on a range of boxer short styles. Size specifications typical of the measurements of men's size medium boxer short underwear are set forth below:

MEDIUM

Waist relaxed 29"

Waist extended 40"

Seat width (bottom) 24"

Comparing the measurements of the submitted sample with those set forth above, we find the relaxed waist of the sample to be 27". The extended waist of the sample is 39". The seat width
is 22". Usually Customs considers measurements smaller than the industry standard for underwear as indicative that the garments are intended to be worn by both men and women. However, this particular garment is available in sizes which range from small to extra large. Usually articles intended to accommodate both women and men will be available in extra small. Moreover, the majority of this article's size distributions are in size medium and large. The size medium fits a 32" waist which is clearly too big for most women to wear. The existence of a fly on the garment is also indicative that the garment is intended for men.

Another criterion Customs will consider in determining whether this garment is unisex is the marketing to be employed by the importer. In the instant case, the importer has no brochures, catalogues or marketing material to supply. As mentioned above, the only indicator that this article is marketed for men is that it will be sold in men's departments and signs will advertise the product as "Men's Boxer Shorts". This suggests the article is for men.

Although no one feature or criterion is determinative, the preponderance of the facts indicate that the article at issue is men's underwear and should be classified accordingly.

HOLDING:

The subject merchandise is properly classifiable under subheading 6207.11.0000, HTSUSA, which provides for men's or boys' singlets and other undershirts, underpants, briefs, nightshirts, pajamas, bathrobes, dressing gowns and similar articles: underpants and briefs: of cotton. The applicable rate of duty is 6.5% ad valorem and the textile category is 352.

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 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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