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HQ 951174


March 19, 1992

CLA-2 CO:R:C:T 951174 CAB

CATEGORY: CLASSIFICATION

TARIFF NO.: 6207.11.0000

Sandra Brown
Fritz Companies, Inc.
P.O. Box 18923
7209 Cessna Drive
Greensboro, NC 27419

RE: Classification of men's woven boxer shorts

Dear Ms. Brown:

This ruling is in response to your inquiry of December 3, 1991, on behalf of Stoked USA, requesting a tariff classification of men's cotton shorts under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). The garment will be imported from Costa Rica. A sample was submitted for examination.

FACTS:

The sample at issue is a pair of men's woven cotton shorts. It has a fully elasticized enclosed waistband and a fly front which does not break the waistband; the fly front has no means of closure. The sample garment is labeled a size medium. The size range that will be offered for sale is small, medium, large, and extra large. The product will be sold in retail stores, specialty stores, and department stores. The shorts contain a 16 inch side seam length which runs from the top of the waistband to the hem bottom. As determined by the New York Customs Laboratory, the garment has a fabric weight of 4.39 ounces per square yard.

ISSUE:

Whether the article at issue is classifiable as underwear or outerwear?

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, taken in order. Two headings are potentially applicable to the garment at issue: Heading 6207, which provides for, inter alia, men's or boys' underpants; and Heading 6103, which provides for, inter alia, men's and boys' shorts.

Recent fashion trends indicate that boxer shorts may be worn as either underwear or outerwear, by both men and women. It is Customs' view, however, that even though boxer shorts can be worn as outerwear, this fact 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 regarding 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. 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 long.

The submitted sample consists of fabric weighing more than 4.2 ounces per square yard. The garment has a fly, but no lining nor belt loops. The leg openings are smaller than the relaxed waist and the side seam length of the size medium sample measures 16 inches. The instant garment contains an enclosed waistband. Thus, the article in question meets two of the factors that indicate classification as outerwear instead of underwear. 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.

In this instance, however, the presumption is refuted due to other characteristics that indicate that the merchandise in question is a pair of men's underpants. Such criteria include the manner in which the product is marketed, sized, and the general appearance of the product. In this case, the importer has submitted a written statement asserting that the product will be marketed as underwear in the men's section of department, retail, and specialty stores. Also, the fact that the shorts contain an open fly with no means of closure is a strong indication that it was designed to be men's underwear, and not an outerwear garment.

Although the sample article has an open fly front, it has come to Customs' attention recently that they are sometimes worn by women. However, the sizes of the garment which consist of small, medium, large, and extra large are typical of men's underwear. Accordingly, the instant garment is classifiable as men's underwear in Heading 6207.

HOLDING

The submitted merchandise is classified under subheading 6207.11.0000, HTSUSA, which provides for men's or boys' singlets and other undershirts, articles, underpants and briefs, of cotton. The rate of duty is 6.5 percent ad valorem, and the textile category is 352.

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 the 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
Commercial Rulings Division

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