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HQ 087940

September 16, 1991

CLA-2 CO:R:C:T 087940 CRS


TARIFF NO.: 6204.62.4055

Ronald W. Gerdes, Esq.
Sandler, Travis & Rosenberg, P.A.
1120 19th Street, N.W.
Washington, D.C. 20036-3605

RE: Boxer shorts with unisex styling or non-underwear features not classifiable as men's underwear. Note 8, Chapter 62.

Dear Mr. Gerdes:

This is in reply to your letter dated March 6, 1991, in support of a ruling request dated August 29, 1990, from Mr. Kit Craig Crider of the Banana Republic, your client, concerning the classification of boxer shorts under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). Numerous samples of Banana Republic boxer shorts were submitted with the original request of 29 August; however, this ruling addresses only the style described below. In addition, you have provided numerous samples of similar merchandise. These additional samples were provided in support of your client's position and are not the subject of this ruling request.


The merchandise in question consists of a pair of woven, 100 percent cotton boxer shorts, style 31252, size adult medium. You have submitted size specifications for the shorts at issue. Those measurements which are relevant are excerpted below. All measurements are in inches.


Waist relaxed 21 23 25 28 31
Waist extended 42 44 46 49 52
Bottom 26 27 28 29 31

The garment has a fly front with snap closure, and is printed in a color described as an "Solid Chambray." The shorts are marked "Made in Hong Kong." The above specifications were not attached specifically to style 31252 but were submitted with your letter of March 6th, together with an additional sample of your client's merchandise, a "stamp" print boxer, style 12411, as an example of the type of garment imported by the Banana Republic. In this regard you state that:

[The stamp print boxer] is representative of the style sold in Banana Republic stores. While the print of the fabric will vary (approximately 8-10 different prints are offered each season) the basic construction of the garment, i.e., length of fly, length of inseam, width of leg, unitary elastic waistband, the snap on the fly, etc., remains the same.

We have also obtained specification measurements for style 12436A, which are identical to those for style 12411.

In addition to your client's specifications for boxer shorts, this office has obtained size specifications from three domestic underwear producers on a range of boxer short styles. Size specifications typical of the measurements of men's boxer short underwear are set forth below. Only the measurements that are directly comparable to the measurements of the merchandise in question are shown. All measurements are in inches.


Waist relaxed 25 29 32 36
Waist extended 36 40 44 48
Seat width (Bottom) 22 24 26 29

You contend that the instant boxer shorts are classifiable as men's underwear. In support of this you state that Customs has uniformly classified garments with the design features of the merchandise in question as men's underwear. In particular, you note that New York Ruling Letters (NYRL) 850329 and 850330 dated March 19, 1990, NYRL 851059 dated April 20, 1990, and NYRL 842587 dated July 6, 1989, issued to your client, classified various styles of boxer shorts as men's underwear of heading 6207. In Headquarters Ruling Letter (HRL) 087939 dated November 28, 1990, however, similar merchandise was classified as women's shorts of heading 6204, HTSUSA.


Whether the style 31252 boxer shorts are classifiable as underpants or as shorts.


Attached to your submission of March 6, 1991, were numerous examples of boxer shorts, labeled Exhibits A - LL, purchased at different locations around the country. In addition, numerous catalogues and advertisements were provided in which various types of boxer shorts were illustrated. You maintain that these materials support the conclusion that boxer shorts constitute a class or kind of merchandise principally used, made, marketed and sold as men's underwear.

Specifically, you argue that the Banana Republic boxers, and thus style 31252, are classifiable as men's underpants pursuant to the terms of heading 6207. General Rule of Interpretation (GRI) 1. Although you maintain that the Banana Republic boxer shorts should be classified pursuant to GRI 1, you also contend that their principle use is as underwear and that consequently, they warrant classification in heading 6207 under Additional U.S. Rule of Interpretation 1(a).

In support of your client's position, you cite nine rulings issued by Customs from September 1986 through October 1990, in which boxer shorts were classified as underwear. On this basis you maintain that there appears to be a uniform and established practice to classify the type of garment at issue as men's underwear. However, for reasons which are set forth below we consider the instant merchandise to be distinguishable from boxer short underwear. Furthermore, Customs Headquarters has not published any rulings on boxer short underwear under the HTSUSA that would establish a uniform practice (19 CFR 177.10(b)). Indeed, we note that the rulings issued by this Office under the HTSUSA concerning boxer shorts have resulted in these articles being classified as men's shorts as well as men's and women's sleepwear. HRL 087436 dated September 25, 1990; HRL 088489 dated April 18, 1991; and HRL 088192 dated February 20, 1991. Consequently, Customs does not recognize the existence of a uniform and established practice with respect to the garments in question.

In the event that Customs were to decide that there had been no uniform practice with regard to the instant merchandise, you have requested that public comment be sought prior to any decision on your client's merchandise. We do not consider this to be warranted since it is likely that a majority of the type of boxer shorts attached to your March 6th submission would, if imported, continue to be classified as underwear. Thus we do not anticipate any dislocation in the underwear trade as a result of this ruling. We have consulted the major domestic men's underwear manufacturers through our National Import Specialists and through the Committee for the Implementation of Textile Agreements and are satisfied that the criteria set forth in this ruling represent commercially realistic distinctions between underwear and outerwear.

In NYRL 850329, NYRL 850330 and NYRL 851059, nine styles of the Banana Republic's boxer shorts were classified under the provision for men's underwear of heading 6207. In HRL 087939, a tenth and separate style of your client's merchandise, style 12437, was held to be classifiable as women's shorts of heading 6204. In so holding we distinguished the Banana Republic shorts from men's underwear on the basis of their styling features and cut. In particular, we noted the presence of a snap closure on the fly, the smaller than normal cut of the waist and the wider than normal cut of the seat. On the basis of what we deemed to be their unisex styling, the style 12437 shorts were classified as women's shorts of heading 6204. We also observed the influence of changing fashions and the fact that it was increasingly popular to wear boxer shorts as a form of outerwear rather than solely as underwear. You argue, however, that HRL 087939 is not supported by the evidence and that the Banana Republic boxer shorts are properly classifiable as underwear.

Four headings are potentially applicable to the garments at issue: heading 6207, HTSUSA, which provides for, inter alia, men's or boys' underpants, briefs and similar articles; heading 6208, HTSUSA, which provides for, inter alia, women's or girls' briefs, panties and similar articles; heading 6203, HTSUSA, which provides for, inter alia, men's or boys' shorts; and heading 6204, HTSUSA, which provides for, inter alia, women's and girls' shorts.

Note 8, Chapter 62, HTSUSA, provides that woven apparel that cannot be identified as either men's or boys' garments or as women's or girls' garments are to be classified in the headings covering women's or girls' garments.

Contrasting the measurements for style 31252, size medium, with measurements for size medium supplied by the three largest domestic manufacturers of men's underwear, a number of significant differences can be observed. First, the relaxed waist of style 31252 is narrower for all size ranges than is the relaxed waist typical of men's underwear. For example, the relaxed waist of the style 31252 medium is 25 inches whereas the typical relaxed waist for men's underwear is 29 inches. When stretched, however, style 31252's waist is larger than the extended waist of men's underwear, e.g., 46 inches as compared to 40 inches for size medium.

Second, style 31252's leg opening measures 28 inches; a typical men's medium underwear boxer leg opening measures approximately 25 inches. Comparing these measurements with the relaxed waist measurements above, it can be seen that the leg opening of style 31252 exceeds the width of its relaxed waist. Correspondingly, the leg opening of a typical garment manufactured and sold by domestic producers of men's underwear is narrower than the width of its relaxed waist.

Third, style 31252's seat measures 29 inches; as far as we can ascertain from the specifications provided by the major U.S. producers of men's underwear, men's medium boxer short underwear typically measure 24 inches in the seat.

Customs considers these measurements an indication that the garment at issue is not constructed solely for men but rather is designed as a unisex garment to fit men and women. Thus, for example, the cut of the waist. In its relaxed state (25 inches) the waist of a size medium is small enough so that the garment can be worn by those with smaller waists (generally women); but the waist expands to 46 inches when stretched so that the garment can also be worn by those with larger waists (generally men). The specifications obtained from men's underwear manufacturers indicate that men's underwear boxers are not designed in this manner, that is, to fit both smaller and larger waist sizes. In addition, whereas style 31252 and all Banana Republic boxers are produced in sizes extra small to extra large, men's underwear typically range in size from small to extra large. Furthermore, within these size ranges, we are advised by the National Import Specialists that a production run of men's boxers is comprised of 18 percent small, 33 percent medium, 33 percent large and 18 percent extra large garments. In contrast, we are advised that a production run of Banana Republic garments consists of 10 percent extra small, 20 percent small, 40 percent medium, 20 percent large and 10 percent extra large. Comparing the production runs it can be seen that while 50 percent of typical men's underwear consists of large and extra large garments, only 30 percent of the Banana Republic boxers are in this range, suggesting once again, therefore, that these articles are designed for the unisex market rather than for men.

You state that the specifications upon which we have based our analysis constitute an insufficiently broad sample size from which to draw conclusions. However, since the date of your Freedom of Information Act request we have obtained additional size specifications on a variety of styles. Moreover, this Office and the National Import Specialist have discussed the size specifications with representatives of the companies concerned and are confident that they accurately reflect the typical cut and design of men's underwear.

You also contend that in comparing the Banana Republic size medium to a domestic manufacturer's size medium that Customs is comparing apples and oranges rather than like with like. Instead you assert that the Banana Republic large (34-36 waist) should be compared with a standard men's underwear medium (34-36 waist). While we agree that in contrasting the Banana Republic medium with a standard men's underwear medium that different articles are being compared, we do not agree that this invalidates the analysis. On the contrary, we believe this supports our position that the Banana Republic garments are unisex in design.

The fact that boxer shorts similar to the merchandise in question are indeed worn by women finds support in numerous articles and advertisements. For example, the J.Crew Spring/Summer 1991 catalogue, at 50, prefaces its advertisement for boxer shorts as follows:
boxer underwear

No question: this is a classic cut of men's underwear. So why have we been seeing them worn by women...in public...from Key West to Kaui? Color, pattern, and comfort have a great deal to do with it. All cotton. Cut generously with fly front, 4 inseams. Deep (1) fabric-encased elastic waistband...Even waist sizes 26- 40.

The boxers advertised include solids, stripes, floral, daisy and other multicolored prints. One photograph shows a woman standing at water's edge wearing a style of the boxer shorts, apparently over a bathing suit. As pictured in the advertisement, the width of the leg openings exceeds the width of the relaxed waist.

Boxer shorts were also the subject of a recent feature in the Los Angeles Times.

Today's bold patterns, bright colors and handsome haberdashery prints in combed cottons and silks remain unseen, of course, under business suits and other-work week garb, but lately have been turning into outerwear. They peek out from under gym shorts or are worn over tight spandex shorts a la Andre Agassi. And yes, women wear them, too.

Id., Oct. 28, 1990, (Magazine) at 33-34.

Similarly, Lamneck, DNR, December 5, 1988, at 29, observes that boxer shorts are worn by both sexes as more than underwear:

Young women wear them almost anywhere but underwear, from classrooms to beaches, while young men are exposing them more discreetly by letting the boxer hang out under shorts. Also, many adult men are wearing more sophisticated patterned boxers around the house as loungewear and sleepwear.

We do not contend that boxer shorts should be classified on the basis of fashion trends. However, we do note that fashions have changed. In view of this Customs deems it appropriate to consider to a garment's construction in order to determine whether it has the characteristics of underwear or outerwear.

Having reviewed the construction of the garment in question, we note that it differs significantly from that which is typical of men's underwear, the extent that it would appear to be designed for both men and women. Nevertheless, it has certain features, such as the fly, which would suggest a man's garment. Accordingly, applying Note 8, Chapter 62, HTSUSA, style 31252 is identifiable neither as a men's garment nor as a women's garment. Consequently, it is classifiable pursuant to Note 8, in the headings covering women's or girls' garments.

Thus only two headings of the four cited above now remain in play: heading 6204 (women's and girls' shorts); and heading 6208 (women's and girls' briefs, panties and similar articles). As for the latter possibility, boxer shorts are not worn by women as underwear and are therefore a class of merchandise separate and distinct from the articles of heading 6208.

Heading 6204, HTSUSA, provides for, inter alia, women's and girls' shorts. Boxers are worn by women and occasionally by men, as outerwear, i.e., as shorts. Lamneck, supra, at 29. Sales to women would appear to have helped spur the growth in the market for boxer shorts.

And it's no longer exclusively a man's world...women, teens, even little ones have jumped into the ring and are loving the comfort and freedom of these elastic- waist, loose-fitting-shorts. A knock-out worn alone for jogging or lounging or as a snappy warm-up over leotards....

Orvis, Spring 1991, at 42. Furthermore, some of the catalogues attached to your March 6th submission portray garments similar to style 31252 in a manner that would indicate that such garments are shorts. Apart from the presence of pockets, there would appear to be little difference between the garments portrayed and the merchandise in question. See e.g., The La Costa Spa, Spring 1991, at 40-41(F); Boston Proper, Spring Selections, 1991, at 47(C); R.T.W., Ready to Wind-Down (Spiegel), Spring 1991, at 26- 27.

However, the fact that boxer shorts can be worn as outerwear is not determinative of their classification. In this respect Customs does not consider the issue to be one of principal use, but rather one solely within the purview of GRI 1. Accordingly, those garments that have the characteristics of men's underpants will be classified as such. You have enumerated some of the design features one would not expect to find on men's boxer short underwear and indeed, have precluded garments from classification as such in the past. Letter of March 6, 1991, at 41.

In classifying the merchandise at issue we have reviewed the distinctions between underwear and outerwear, and believe that 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 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.

Although no one feature is determinative, the presence of more than one of the above features gives rise to the presumption that a boxer style garment is either outerwear or a unisex garment rather than men's underwear. This presumption is rebuttable, however, and the above criteria will be evaluated in conjunction with advertising and marketing information. In addition, size specifications will be considered and compared to those supplied by domestic underwear manufacturers.

The fourth criteria above provides a test for distinguishing men's garments from unisex garments and thus accomplishes nothing more than what is required by Note 8, Chapter 62. The comparison of the leg opening to the relaxed waist is merely an easy method for the import specialist to effect this distinction.

You assert that Exhibits A-KK represent merchandise similar to the Banana Republic garments. Although we do not have size specifications for Exhibits A-KK, we have compared leg openings to waist size. On this basis it appears likely that the majority of the samples attached to your submission of March 6th would be classifiable as men's underwear. Factors such as color, print, single snap closures at the fly, and price are not taken into account and have no impact on a garment's classification.

With regard to the specific merchandise imported by Banana Republic, the information you have provided suggests that these garments are unisex. You have not provided any advertising materials to indicate that garments such as style 31252 are sold as underwear. We are advised by our National Import Specialists that the Banana Republic is recognized in the trade for selling outerwear garments to men and women, and is not identified with the men's underwear trade. Moreover, the garments sold by Banana Republic are not directed toward one sex. There are no separate underwear departments nor do the stores have separate men's and women's departments.


The style 31252 boxer short is classifiable in subheading 6204.62.4055, HTSUSA, under the provision for women's or girls' suits, ensembles . . . and shorts; trousers, bib and brace overalls, breeches and shorts; of cotton; other; other; other; shorts; women's. They are dutiable at the rate of 17.7 percent ad valorem and are subject to textile quota category 348.

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 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.

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.

As a result of the foregoing, HRL 087939 dated November 28, 1990, is affirmed.

In order to insure uniformity in Customs classification of this merchandise and eliminate uncertainty, we are revoking NYRLs 850329, 850330 and 851059 to reflect the above classification effective with the date of this letter. However, if, after your review, you disagree with the legal basis for our decision, we invite you to submit any arguments you might have with respect to this matter for our review. Any submission you wish to make should be received within thirty days of the date of this letter.

This notice to you should be considered a revocation of NYRL 850329, NYRL 850330 and NYRL 851059 under 19 CFR 177.9(d)(1). It is not to be applied retroactively to NYRLs 850329, 850330 and 851059 (19 CFR 177.9(d)(2)) and will not, therefore, affect past transactions for the importation of your client's merchandise under these rulings. However, for the purposes of future transactions in merchandise of this type, NYRLs 850329, 850330 and 851059 will not be valid precedent. We recognize that pending transactions may be adversely affected by this modification, in that current contracts for importations arriving at a port subsequent to this decision will be classified pursuant to it. If such a situation arises, your client may, at its discretion, notify this office and apply for relief from the binding effects of this decision as may be warranted by the circumstances. However, please be advised that in some instances involving import restraints, such relief may require separate approvals from other government agencies.


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