CLA-2 CO:R:C:T 950265 SK
Paula Duffel
Import Manager
S.A.F. Customs Brokers
144-30 157th Street, 2nd floor
Jamaica, N.Y. 11434
RE: Classification of men's cotton boxer shorts; 6207, HTSUSA;
not outerwear; not unisex; underwear features
Dear Ms. Duffel:
This is in response to your letter of May 29, 1991, on
behalf of your client Gibor Sabrina USA, requesting
classification of boxer shorts. A sample was submitted for
Customs' examination.
FACTS:
The submitted sample is a boxer short constructed from 100%
cotton knit jersey fabric with a printed pattern. The garment
has a one inch rolled elasticized waistband and a two-button fly
front. The garment is labeled a size medium and indicates it
will fit a size 30-32 inch waist. The importer states that this
merchandise will be sold in individual cardboard boxes and
displayed in underwear/accessories departments in better men's
stores. The garments are made in Israel.
ISSUE:
Whether the article at issue is properly classifiable as
men's boxer shorts under heading 6207 of the Harmonized Tariff
Schedule of the United States Annotated (HTSUSA), which provides
for men's or boys' underpants?
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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.
The submitted sample consists of fabric weighing less 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
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waist and the side length of the size medium sample measures 13.5
inches. The only features the article at issue contains which
are indicative of outerwear are the overturned waistband and the
two-button fly. Usually the presence of more than one of these
features 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 although the fabric used in this
garment's construction is not traditionally used for men's boxer
shorts, it is nevertheless too sheer to be used as outerwear.
The importer has submitted fabric swatches showing other prints
this article will be available in and they too are equally sheer.
Moreover, the importer states that these articles will be
displayed in the underwear/accessories departments of small
better men's stores. This 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 26". The extended waist of the sample is 38". The seat width
is 19". 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 constructed from a stretch knit fabric.
This feature allows the article to stretch when worn and
therefore the garment need not be as big as similar articles
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constructed from non-stretch woven materials. Customs notes that
the tapered proportions of this garment may be an effort to
streamline the underwear so that when worn under men's dress
trousers they are less bulky. 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 intends to sell
these garments in small better men's stores. This suggests the
article is for men.
Although no one feature or criterion is determinative, it is
clear that 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. Products of Israel,
within this provision of the HTSUSA, are eligible for duty free
treatment for purposes of the United States-Israel Free Trade
Area Implementation Act of 1985. 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.
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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