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HQ 950731


March 5, 1992

CLA-2 CO:R:C:T 950731 CMR

CATEGORY: CLASSIFICATION

TARIFF NO.: 6207.91.3010

Mr. Burt Witkin
Smart Shirts Ltd.
120 West 45th Street
27th Floor
New York, New York 10036

RE: Classification of a pair of men's cotton flannel boxer shorts

Dear Mr. Witkin:

This ruling is in response to your letter of November 13, 1991, requesting the classification of a pair of men's cotton flannel boxer shorts. You indicate that the boxers are underwear and that the company you represent plans to manufacture very similar boxer shorts in Sri Lanka.

FACTS:

The submitted sample is a pair of 100 percent cotton woven flannel boxer shorts. The fabric weight ranges from 4.8 to 5.0 ounces per square yard. The garment features a 1-1/2-inch self- fabric elasticized waistband, a fly front secured by a button in the middle, hemmed leg bottoms and a rear center seam.

In your supplemental letter of December 20, 1991, you indicated that the boxer shorts would likely be sold to Mervyn's Department Stores and Retail Venture. Mervyn's submitted a separate ruling request on the same merchandise. Included in their submission was a copy of an advertisement for the flannel boxer shorts.

ISSUE:

Is the submitted sample boxer short classifiable as underwear of subheading 6207.11.0000, HTSUSA, or as other sleepwear of subheading 6207.91.3010, HTSUSA?

LAW AND ANALYSIS:

Classification of goods under the HTSUSA is governed by the General Rules of Interpretation (GRIs). GRI 1 provides that "classification shall be determined according to the terms of the headings and any relative section or chapter notes and, provided such headings or notes do not otherwise require, according to [the remaining GRIs taken in order]."

In HRL 087940 of September 16, 1991, features which Customs believes to be indicative of non-underwear garments were enumerated. Those features are:

1. Fabric weight greater than 4.2 ounces per square yard;

2. An enclosed or turned over waistband;

3. Lack of a fly or 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 (not including the waistband, or button or zipper fly closures;

7. The side length of a size medium should not exceed 17 inches.

In HRL 087940, Customs stated:

Although no one feature is determinative, the presence of more than one of the above features gives rise to the presumption that a boxer style garment is either outerwear or a unisex garment rather than men's underwear.

The garment at issue herein is of a fabric weight greater than 4.2 ounces per square yard and has an enclosed waistband. Therefore, it has more than one of the above features which leads Customs to presume it is not men's underwear. This presumption is rebuttable. However, based on the information you have provided, along with information provided by Mervyn's, we do not believe you have succeeded in showing that the boxer shorts in question are men's underwear. Indeed, the advertisement supplied by Mervyn's identifies the boxers as "Charles Goodnight flannel boxers", Customs is inclined to view the boxer shorts as sleep bottoms. In fact, in their initial ruling request dated August 28, 1991, which was rejected for insufficient information, Mervyn's stated that they had previously brought the 100 percent cotton plaid flannel boxer shorts into the port of San Francisco
as men's sleepshorts. Of course, in the subsequent resubmission of their ruling request, Mervyn's indicated the boxer shorts were underwear and that they had entered them as such into the port of San Francisco.

HOLDING:

Based on the construction of the boxer shorts at issue, i.e., the weight of the fabric and the enclosed waistband; the lack of evidence to rebut the presumption created by these factors that the boxer shorts are not underwear; and, the initial ruling request identification of the garment as sleepshorts by Mervyn's and the advertising contained in their subsequent submission, Customs believes the boxer shorts at issue are properly classified as men's other sleepwear of cotton in subheading 6207.91.3010, HTSUSA, textile category 351, dutiable at 6.5 percent ad valorem.

You indicated Mervyn's will be a purchaser of the boxer shorts and an importer of record for the goods. Since they apparently sent in a ruling request for the identical garment, we will send them a copy of this ruling in response to their request.

The designated textile and apparel category may be subdivided into parts. If so, the 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 updated weekly and 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
Commercial Rulings Division

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