HQ 950266
October 28,1991
CLA-2 CO:R:C:T 950266 SK
Mr. Robert J. Mele
CSI Industries, Inc.
450 Winks Lane
Bensalem, PA 19020
RE: Classification of 100% cotton boxer shorts; outerwear
v. underwear; men's v. unisex; 6207, HTSUSA
Dear Mr. Mele:
This is in response to your letter of August 2, 1991,
requesting a binding classification ruling with regard to cotton
boxer shorts. A sample was submitted for Customs' examination
and will be returned under separate cover.
FACTS:
The submitted sample is a pair of 100% woven cotton boxer
shorts. The garment has a fully elasticized fabric-covered
waistband and a fly front opening with a one-button closure. The
fly front breaks the waistband which has a two button closure.
The outseam from the top of the waistband to the hem measures
approximately 16 1/2 inches. The garment is labeled a size
medium and indicates it will fit a size 32 inch waist. The
garment will come in sizes small, medium, large and extra large.
The distribution ratio of each size that will be offered for
sale is 2 small, 4 medium, 4 large and 2 extra large. This
merchandise will be sold in men's departments, but in stores that
sell both men's and women's clothes. The garments will be
manufactured in the Philippines, Hong Kong and China.
ISSUE:
Whether the article at issue is classifiable under heading
6207 of the Harmonized Tariff Schedule of the United States
Annotated (HTSUSA) which provides for men's or boys' underpants,
or under heading 6203, HTSUSA, which provides for, inter alia,
men's shorts?
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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.
No information regarding the submitted sample's weight per
square yard was provided. The garment has a fly, but no lining
nor belt loops. The leg openings are only marginally larger than
the garment's relaxed waist: the leg openings measure 27 1/2
inches and the relaxed waist is 27 inches. The side length of
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the size medium sample measures 16 1/2 inches. The features this
article contains which are indicative of outerwear are the
overturned waistband and the fact that the leg openings are just
slightly larger than the relaxed waist. 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. Additional criteria such as
marketing, size specifications and other physical attributes of
the garment may be considered to refute this presumption.
Customs notes that the fabric used in this garment's
construction is quite thin and not of the weight traditionally
used for men's outerwear shorts. Moreover, these articles will
be displayed in the men's departments of stores which sell both
men's and women's clothing. Although women could potentially be
purchasers of this item, a rack top sign will be placed above the
merchandise advertising the item as "Men's Boxer Shorts". The
fact that the article's material is too thin for men's outerwear,
the store's advertising specifically refers to these garments
as boxer shorts, and the article's leg opening is only a fraction
larger than the garment's relaxed waist, 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 27". The extended waist of the sample is 39". The seat width
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is 22". 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 available in sizes which range from small
to extra large. Usually articles intended to accommodate both
women and men will be available in extra small. Moreover, the
majority of this article's size distributions are in size medium
and large. The size medium fits a 32" waist which is clearly too
big for most women to wear. 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 has no
brochures, catalogues or marketing material to supply. As
mentioned above, the only indicator that this article is marketed
for men is that it will be sold in men's departments and signs
will advertise the product as "Men's Boxer Shorts". This
suggests the article is for men.
Although no one feature or criterion is determinative, 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. The applicable rate
of duty is 6.5% ad valorem and 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