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HQ 955305


December 29, 1993

CLA-2 CO:R:C:T 955305 ch

CATEGORY: CLASSIFICATION

TARIFF NO.: 6207.11.0000

Indie K. Singh, Esq.
Singer & Singh
469 Seventh Avenue
Suite 1300
New York, New York 10018

RE: Classification of cotton flannel boxer shorts; underwear.

Dear Ms. Singh:

This is in response to your letter of September 21, 1993, requesting tariff classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) for a pair of cotton flannel boxer shorts. Please reference your client, Dothan Apparel, Inc.

FACTS:

The submitted sample is a pair of lightweight cotton flannel boxer shorts. This article features a fully elasticized turned over waistband with a one button closure. It does not possess belt loops, inner or outer pockets or a lining. The shorts measure approximately 13 inches across the relaxed waist; 15 1/2 inches from the top of the waistband to the hem bottom; 12 1/2 inches across a single leg opening.

ISSUE:

Whether the instant boxer shorts are classifiable under subheading 6207.11.0000, HTSUSA, which provides for men's woven cotton underpants and briefs; or subheading 6207.91.3010, HTSUSA, which provides for men's woven cotton sleepwear; or subheading 6203.42.4050, HTSUSA, which provides for men's woven cotton shorts?

LAW AND ANALYSIS:

Classification of goods under the HTSUSA is governed by the General Rules of Interpretation (GRI). GRI 1 provides that classification is determined first in accordance with the terms of the headings of the tariff and any relative section or chapter notes. Where goods cannot be classified on the basis of GRI 1, the remaining GRI will be applied in order.

In light of contemporary fashions trends, it is our practice to classify boxer shorts as either underwear, sleepwear or shorts on a case-by-case basis. See Headquarters Ruling Letter (HRL) 954336, dated September 27, 1993; HRL 953487, dated April 22, 1993; HRL 951981, dated September 8, 1992. In HRL 087940, dated September 16, 1991, we recognized the following features as 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 (not including the waistband, or button or zipper fly closures);

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

Boxer shorts which display more than one of the above features are presumptively not underwear. However, this presumption is rebuttable where it can be shown that criteria such as marketing or other physical attributes are determinative. In this instance, the sole non-underwear feature possessed by the instant shorts is the turned over waistband. Under normal circumstances, a garment possessing a single non-underwear feature will be classified as underwear. There is no marketing information in our possession tending to rebut the presumption that this article is underwear and it appears to be suitable for use as such. Accordingly, it shall be classified as a pair of men's cotton underpants.

HOLDING:

The subject merchandise is 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 percent ad valorem. The textile quota 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 the subject of frequent negotiations 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 issuance of the U.S. Customs Service, which is updated weekly and is available at the 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 the local Customs office prior to importing the merchandise to determine the current status of any import restraints or requirements.

Sincerely,

John Durant, Director

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