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HQ 951750

July 7, 1992

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.


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.


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?


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.


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.


John Durant, Director

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