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HQ 957005

January 13, 1995

CLA-2 CO:R:C:T 957005 BC


TARIFF NO.: 6203.42.4050

District Director of Customs
U.S. Customs Service
6747 Engle Road
Middleburg Heights, Ohio 44130

RE: Application for further review of protest no. 4103-94-100564; classification of men's boxer shorts; underwear; loungewear

Dear Sir:

This is a decision on an application for further review of protest no. 4103-94-100564, filed by Expeditors International of Columbus, Ohio, on behalf of NAP, INC. The protest objects to your decision regarding the classification of men's boxer shorts.


The merchandise at issue was entered on March 7, 1994. On July 15, 1994, Customs issued a Notice to Mark and/or Redeliver, indicating, in part, that the merchandise entered should be classified as men's shorts in subheading 6203.42.4050, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), rather than as men's underwear in subheading 6207.11.0000, HTSUSA. This protest, timely filed on August 12, 1994, objects to that decision. 19 U.S.C.

The sample submitted with this protest is a pair of men's woven cotton boxer shorts (size medium). The shorts have a turned over, fully elasticized waistband, a double placketed fly front (that does not break the waistband) with a one button closure, and a two-inch hem at the leg openings. The relaxed waist measures 13 1/2 inches, the leg openings measure 13 inches, and the side seam measures 16 inches. The hangtag on the garment describes it as a "mix of loungewear, sportswear, and activewear." The PROTESTANT states that the shorts are sold to retail clients as men's underwear/loungewear. Three of PROTESTANT's clients submitted statements with this protest indicating respectively that the shorts are sold in the loungewear and sleepwear department, the underwear department, and the loungewear department.


Are the boxer shorts at issue classifiable as men's shorts or as men's underwear?


The issue presented has been addressed in previous Customs Headquarters Rulings (HRL's). Customs classifies boxer shorts as

either underwear, sleepwear, or shorts on a case-by-case basis, depending on the characteristics of the shorts evident in each case. In classifying such merchandise, we have referred to the following checklist of characteristics that are indicative of non-underwear garments (sometimes referred to as guidelines). That is, the presence of the below-listed characteristics tends to indicate that garments are not underwear:

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 in excess of 17 inches.

The presence of two or more of the above characteristics in a given case gives rise to a presumption that the garment is not underwear. The absence of these characteristics, or the presence of only one, gives rise to a presumption that the garment is underwear. In either event, the presumption is rebuttable and may be overcome by convincing evidence tending to show the contrary, such as marketing information or other physical characteristics. See HRL's 955787 (April 26, 1994), 955305 (December 29, 1993), 954123 (December 17, 1993), 954632 (October 27, 1993), 956360 (September 27, 1993), 954336 (September 27, 1993), 953392 (September 20, 1993), 953408 (June 11, 1993), 951032 (May 7, 1992), and 087940 (September 16, 1991).

The boxer shorts at issue evidence only one of the above characteristics: a turned over waistband. (While information regarding the fabric weight of the shorts was not supplied, examination of the sample is not conclusive; the apparent weight of the material does not suggest use of the shorts as either underwear or outerwear to the exclusion of the other. While the material is not as light as some (perhaps more typical) underwear we have seen, it appears suitable for either use.) According to the above rule, this gives rise to the presumption that the shorts are underwear. The question is whether there is sufficient other information to rebut this presumption.

Information tending to rebut the presumption (that the shorts are underwear) includes the following:

(1) The hangtag attached to the shorts states the following: "'NAP MEN'S ESSENTIALS' reflect a new direction in men's wear. This mix of loungewear, sportswear, and activewear truly expresses the New American Lifestyle. 'MEN'S ESSENTIALS' are created to help build the multi-purpose wardrobe for a man's leisure hours."

(2) Two of the statements from PROTESTANT's clients submitted with this protest indicate that the shorts are not underwear: one states they are sold in the department for loungewear and sleepwear; the other suggests they are sold in the loungewear department.

(3) Physical characteristics of the shorts that tend to support the information referred to in (1) and (2) above.

Bearing on (3) above, we note the field import specialist's view that the sample shorts examined by that officer were thought to be too bulky (oversized) for underwear, and that the two-inch hemmed leg openings and double lined (six-layered) fly placket do not appear to be characteristics of underwear. The file also shows that the NIS (National Import Specialist) agreed with that view, believing that the enclosed waistband, two-inch hemmed leg openings, and hangtag description of the shorts did not indicate use as underwear. In his written report to this office, the NIS stated that the shorts are not underwear but rather a multi-purpose garment classifiable as shorts. Therein, the loose fit of the shorts is additionally noted.

Based on the foregoing information, we conclude that the presumption that the shorts are underwear has been overcome. The marketing information represented by the hangtag contains no suggestion that the shorts are underwear. Rather, it indicates that the shorts were designed to be a multi-purpose garment: loungewear, sportswear, and activewear, none of which are underwear. The physical characteristics of the shorts are not inconsistent with those uses. Further, two of PROTESTANT's clients indicated that the shorts would be sold as loungewear. This is supportive of the hangtag description. Either of these sources of information (the hangtag and the client statements~ may or may not be controlling alone, depending on the particular facts of a given case; however, together, on the facts of this case, we consider them persuasive. Thus, we conclude that the marketing information tends to rebut the initial presumption.

Moreover, although the shorts exhibited only one of the above listed seven criteria (giving rise to the underwear presumption), the following physical characteristics, taken together, support the conclusion drawn from the above marketing information that the shorts are not underwear: (1) the material is neither a light nor a very heavy fabric; its apparent weight is sufficient to indicate outerwear use as loungewear or even shorts; (2) although the measurements of the shorts fall within those contained in the guidelines (again, giving rise to the underwear presumption), the observations of the field and national import specialists that the shorts are bulky or loose fitting is shared by this office; (3) the 16 inch measure of the side seam and the comparison of the leg opening and relaxed waist measurements, although within the guidelines, are very close to the maximum; (4) the double placketed, six-layered button fly opening is sufficiently rigid and secure for outerwear use and beyond what is necessary for mere underwear; and, (5) the two-inch hemmed leg openings are an appropriate stylistic feature for outerwear but, like the placket, beyond what is necessary for underwear. Thus, we conclude that the physical characteristics of the shorts are consistent with the marketing information and support its rebuttal effect.


(Information tending to militate against the above rebuttal evidence - the fact that the third statement from PROTESTANT's clients indicates that the shorts are sold in the underwear department and the fact that the entry documents refer to the shorts as underwear and underpants - is not sufficiently persuasive to preclude rebuttal. Loungewear/activewear, particularly boxer shorts so designed, is commonly sold in the underwear department. Also, use of the term underwear on the entry, entry summary, etc., is not considered as significant as the marketing/retailing information or the physical characteristics.)

In conclusion, we believe that the marketing information and the physical characteristics of the shorts at issue rebut the presumption that the shorts are underwear. It appears to us that the shorts represented by the sample examined are designed to be multi-purpose outerwear garments suitable for use as loungewear in and around the home or even as sports/activewear outside the home.


The boxer shorts at issue are classifiable as men's shorts in subheading 6203.42.4050, HTSUSA, which provides for, among other things, men's shorts of cotton. The applicable duty rate is 17.7% ad valorem and the quota category is 347.

Consequently, this protest is DENIED. In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, this decision should be mailed by your office to the PROTESTANT no later than 60 days from the date of this letter. Any reliquidation of the entries in accordance with the decision must be accomplished prior to mailing of the decision. Sixty days from the date of the mailing of the decision, the Office of Regulations and Rulings will take steps to make the decision available to Customs personnel via the Customs Rulings Module in ACS and the public via the Diskette Subscription Service, Freedom of Information Act, and other public access channels.


John Durant, Director
Commercial Rulings Division

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