CLA-2 CO:R:C:T 951981 jb

Ms. Julie White
Nordstrom, Inc.
A/P, Import Office
1321 2nd Avenue
Seattle, WA 98101

RE: Men's woven boxer shorts of cotton flannel; subheading 6207.91.3010, HTSUSA; men's other woven cotton sleepwear

Dear Ms. White:

This is in regard to your letter, dated May 6, 1992, requesting tariff classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA), for three different styles of men's woven boxer shorts. A single sample was provided to our office and will be returned under separate cover. This ruling is limited to the submitted sample. We are unable to rule on the other styles which are stated to be made of different fabrics, without samples of the merchandise.


The sample submitted, Style number BR918-5, is a pair of men's size Medium, woven cotton flannel, stonewashed boxer shorts, manufactured in Hong Kong. The boxer shorts feature brushed fabric, a fully elasticized turned over waistband and a fly front opening which does not have a closure and does not break the waistband. The garment measures 16 inches from the top of the waistband to the hem bottom. The weight of the boxer shorts is 5.08 ounces per square yard. The boxer shorts will be sold in sizes Small, Medium, Large and Extra-Large.


Whether the submitted sample is classifiable as underwear in subheading 6207.11.0000, HTSUSA, or as other sleepwear in subheading 6207.91.3010, HTSUSA?


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 be applied, in the order of their appearance.

In Headquarters Ruling Letter (HRL) 087940, dated September 16, 1991, it was decided that Customs' policy with regard to the classification of boxer shorts would require a case by case analysis, employing realistic criteria that would determine whether garments are sleepwear or underwear. Such factors include the construction, weight and 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

Past Customs rulings addressing similar items have determined that garments which display more than one of the above features give rise to the presumption that the garment is not underwear. This presumption is rebuttable where it can be shown that additional criteria such as marketing, or other physical attribute are determinative (See HQ 950890, dated January 15, 1992 and HQ 089907, dated September 27, 1991). In this instance, no evidence of how this merchandise will be marketed was submitted.

In HQ 951188, dated June 2, 1992, boxer shorts which were found to have two of the enumerated nonunderwear features were determined to be sleepwear for classification purposes. Similarly, as the submitted sample features two nonunderwear features, i.e., a turned over waistband and a fabric weight that exceeds the allowable 4.2 ounces per square yard, the boxer shorts are classified in heading 6207, HTSUSA, which provides for, inter alia, men's or boys' nightshirts, pajamas, bathrobes, dressing gowns and similar articles.


The submitted sample is classifiable under subheading 6207.91.3010, HTSUSA, which provides for men's other woven cotton sleepwear. The applicable rate of duty is 6.5 percent ad valorem and the textile category is 351.

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 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
Commercial Rulings Division