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HQ 953408

June 11, 1993

CLA-2 CO:R:C:T 953408 ch


TARIFF NO.: 6207.91.3010

Indie K. Singh, Esquire
Singer & Singh
469 Seventh Avenue
Suite 1300
New York, New York 10018

RE: HRL 951912 affirmed; Men's cotton flannel boxer shorts; underwear; sleepwear.

Dear Ms. Singh:

This is in response to your letter of February 3, 1993, requesting that we reconsider our decision in Headquarters Ruling Letter (HRL) 951912, dated August 27, 1992. In that ruling, we classified certain cotton flannel boxer shorts as sleepwear, pursuant to subheading 6207.91.3010, Harmonized Tariff Schedule of the United States Annotated (HTSUSA). Per our request, you have furnished this office with two samples, which you aver are representative of the merchandise at issue. Please reference your client, Host Apparel, Incorporated.


In HRL 951912, we described the merchandise as follows:

The merchandise at issue consists of two pairs of men's boxer shorts made from woven cotton flannel. Both samples have a fully elasticized waistband with the elastic exposed on the interior surface. In addition, both samples have a fly front opening that does not break the waistband and measure 16 1/2 inches from the top of the waistband to the hemmed bottom. One sample has a button closure at the fly; the other has no closure. The garments have not yet been assigned style numbers.

The original binding ruling request filed on behalf of Host Apparel, dated March 26, 1992, contained the following statement:

Host Apparel Inc. specializes in sleepwear and these garments will be distributed as such.

In addition, one of the submitted samples features a label which reads as follows:

Your Guarantee of Sleeping Comfort


Whether the instant boxer shorts are classifiable under subheading 6207.91.3010, which provides for men's cotton sleepwear; or subheading 6207.11.0000, which provides for men's underpants or briefs?


In light of contemporary fashions trends, it is our practice to classify boxer shorts as either underwear, sleepwear or shorts on a case-by-case basis. See HRL 953487, dated April 22, 1993; HRL 953005, dated December 24, 1992; HRL 951981, dated September 8, 1992. We recognize the following features as 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.

Boxer shorts which display more than one of the above features are presumptively not underwear. However, this presumption is rebuttable where it can be shown that additional criteria such as marketing or other physical attributes are determinative.

In your written submissions, you contend that the instant boxer shorts do not possess any of the features enumerated above. Therefore, the boxer shorts are presumptively underwear. In addition, you note that we have classified substantially similar boxer shorts as underwear in the past. In light of this precedent, you argue that the instant garments must also be classified as underwear.

For the sake of argument, we will assume that the subject merchandise does not possess two or more of the features enumerated above. Therefore, the shorts are presumptively underwear. However, in this case we find that this presumption has been rebutted.

As noted above, Host's original binding ruling request contained a statement that it specialized in sleepwear and that the shorts would be distributed as such. This statement indicates that classification of the merchandise as underwear would not reflect its intended use. Although you have submitted purchase orders which, you state, reflect orders for the merchandise from the underwear departments of various retailers, this evidence alone does not establish that the shorts will be marketed as such. Indeed, at least one of the submitted samples is clearly marketed as sleepwear, as evidenced by the legend "Your Guarantee of Sleeping Comfort" found on its label. Therefore, we conclude that the principal use of the instant boxer shorts is as sleepwear.

We note that the principal use of a multiple use garment may vary from case-to-case. Boxer shorts may be worn as either underwear, sleepwear or shorts, depending upon its physical attributes and marketing. In this case, the shorts possess features rendering them suitable for use as either underwear or sleepwear. In this situation, the marketing of the merchandise bears directly on the issue of principal use. As the instant shorts are marketed as sleepwear, we find that they are principally used as sleepwear. However, the identical merchandise could be classified as underwear if they were marketed as such. Therefore, where tariff classification is controlled by the use of the article, we are not bound to classify similar merchandise under identical headings of the tariff schedule.

HRL 951912 was correctly decided based upon the applicable headings and legal notes, and is hereby affirmed.


The subject merchandise is classifiable under subheading 6207.91.3010, HTSUSA, which provides for men's or boys' singlets and other undershirts, underpants, briefs, nightshirts, pajamas, bathrobes, dressing gowns and similar articles: other: of cotton: other: sleepwear. The applicable rate of duty is 6.5 percent ad valorem. The textile quota category is 351.


John Durant, Director

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