CLA-2 CO:R:C:T 951750 jb
TARIFF NO: 6207.11.0000
Mr. John M. Birt
County Seat Stores, Inc.
Import Office
17950 Preston Road, Suite 1000
Dallas, Texas 75252-5638
RE: Men's woven boxer shorts of cotton flannel; subheading
6207.11.0000, HTSUSA, men's underpants and briefs, of cotton
Dear Mr. Birt:
This is in regard to your letter dated February 18, 1992,
requesting tariff classification under the Harmonized Tariff
Schedule of the United States Annotated (HTSUSA), for a pair of
men's woven boxer shorts. A sample was provided to our office.
FACTS:
The sample submitted, style BOXBTS, is a pair of men's woven
cotton flannel shorts, size Medium. The shorts feature a fully
elasticized waistband, with the elastic visible on the interior
surface of the waistband, and a fly front opening without a means
of closure (the fly front does not break the waistband).
The shorts will be sold in sizes Extra Small, Small, Medium
and Large. The merchandising of the shorts will be in the
accessory area of your stores. Singapore or China will be the
place of manufacture of the shorts.
ISSUE:
Whether the garment is classifiable under subheading
6207.11.0000, HTSUSA, which provides for men's underpants and
briefs,of cotton or subheading 6207.91.3010, HTSUSA, which
provides for men's other woven cotton sleepwear?
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 we applied, in order.
Recent fashion trends indicate that boxer shorts may be worn
as either underwear or sleepwear. Customs acknowledges that the
fact that boxer shorts may be worn as sleepwear is not
determinative of their classification. Those garments that have
the characteristics of men's underpants will be so classified, in
the absence of convincing evidence to the contrary.
In HRL 087940, dated September 16, 1991, Customs' policy
with regard to the classification of boxer shorts was discussed.
It was decided that such a decision would require a case by case
analysis, employing criteria that would allow realistic
determinations of whether garments are sleepwear or underwear.
Such factors include the construction of the garment, the weight
of the material, and the marketing of the garment. The following
features were also enumerated as indicative of nonunderwear
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
Customs has ruled on similar items in the past. Those
rulings have determined that garments which display more than one
of the above features give rise to the presumption that the
garment is not underwear. Thus, where the garment has shown not
to have any, or just one "nonunderwear" feature, and the garment
has been marketed as underwear, classification has been accorded
under subheading 6207.11.0000, HTSUSA, which provides for men's
underpants and briefs,of cotton (See, e.g., HQ 950265, September
26, 1991; HQ 089907, September 27, 1991; HQ 950266, October 28,
1991; HQ 950890, January 15, 1992).
This presumption is of course rebuttable where it can be
shown that additional criteria such as marketing, or other
physical attribute are determinative. In HQ 088489, dated April
18, 1991, a pair of boxer shorts was classified under
6207.94,4000, HTSUSA, a provision for men's sleepwear. This
decision took into consideration several factors: the boxer
shorts displayed a nonunderwear feature (rolled top of the
partially elasticized waistband); the shorts were made from
rayon, a fabric not commonly used for men's underwear; the shorts
formed a set with color and design coordinated robes.
Similarly, in HQ 950731, dated March 5, 1992, a pair of
men's cotton flannel boxer shorts was classified under
subheading 6207.91.3010, HTSUSA, which provides for men's other
sleepwear of cotton. That garment also displayed more than one
of the enumerated nonunderwear features (fabric weight greater
than 4.2 ounces per square yard and an enclosed waistband), but
great consideration was also given to the fact that despite
claims by the importer that the garment was underwear,
advertisements reflected the contrary-- the shorts were actually
being marketed as sleepwear.
The submitted sample consists of fabric weight weighing 4.22
ounces per square yard. It has a fully elasticized waistband,
visible on the interior surface, a fly front opening, a leg
opening measuring less than the relaxed waist, no belt loops or
pockets, and the side length of the shorts (size Medium) do not
exceed 17 inches. The only feature which the article at issue
contains which is indicative of a nonunderwear garment is the
fabric weight greater than 4.2 ounces per square yard-- a
negligible difference. To create a rebuttable presumption that
the shorts are underwear would require the presence of more than
one of the enumerated features, or some other additional
criteria, such as physical attribute or marketing.
You did not provide us with catalogues or advertisements for
the boxer shorts but you state that the merchandising is to be in
the accessory area of your stores, along with socks.
Specifically, the shorts will be located in the "Young Men's"
sections of your stores and they will have paper bands around
them identifying them as "boxer shorts". It is Customs view that
as the boxer shorts do not create a rebuttable presumption that
they are underwear, they will be classified under subheading
6207.11.0000, HTSUSA, which provides for men's underpants and
briefs, of cotton.
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 rate of duty is 6.5 percent ad valorem.
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 the subject to 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
Commercial Rulings Division