CLA-2 CO:R:C:T 953005 ch
Sheryl Burgard, Esquire
Charles M. Schayer & Co.
3839 Newport Street
Denver, CO 80207
RE: Men's woven cotton flannel boxer shorts; subheading
6207.11.0000, HTSUSA, men's underpants and briefs, as
opposed to shorts or sleepwear
Dear Ms. Burgard:
This is in regard to your letter dated August 20, 1992,
requesting tariff classification under the Harmonized Tariff
Schedule of the United States Annotated (HTSUSA), for a pair of
men's woven cotton boxer shorts. A sample was provided to our
office.
FACTS:
The sample submitted is a size large pair of men's woven
cotton flannel boxer shorts with an elasticized waistband. The
elastic on the inner portion of the waistband is exposed. The
garment has an unsecured fly front opening and has no lining. It
measures 14 1/2 inches from the top of the waistband to the hem
bottom; 13 1/2 inches across the relaxed waist; 12 1/2 inches
across a single leg opening. The weight of the boxer shorts is
3.5 ounces per square yard. The garment has no pockets.
The importer has also submitted an excerpt from a catalogue
picturing boxing shorts similar to the sample, along with other
items of apparel. These garments are grouped together under the
designation "shorts," and are described in an accompanying list
of style numbers and costs.
ISSUE:
Whether the above-captioned 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, or
subheading 6203.42.4050, HTSUSA, which provides for men's shorts,
of cotton, other, other, shorts, men's.
LAW AND ANALYSIS:
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 order.
In HRL 951750, Customs took the position that garments
possessing the characteristics of men's underpants will be
classified as such, in the absence of convincing evidence to the
contrary. Hence, boxer shorts capable of being worn
alternatively as underpants, sleepwear or shorts will be
classified as underpants under normal circumstances.
HRL 087940 enumerated accepted attributes 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.
The presence of more than one of these features gives rise to a
presumption that the garment is non-underwear.
The boxer shorts which are the subject of this ruling do not
possess any of the features listed above. It follows that there
arises no presumption that said garment is non-underwear. Stated
in different terms, the garment in this instance possesses
features found in underwear. Absent convincing evidence to the
contrary, the garment will be classified as men's underpants.
Although for marketing purposes the garment has been grouped
with other apparel under the designation "shorts," the word as
used in this context should not be construed as a term of art
under the HTUSA. The term appears in a catalogue designed for
public distribution. Customs takes the view that a typical lay
person could associate the term "shorts" with underwear or any
other trouser extending to the knee or above. Therefore, use of
the term "shorts" in this case does not constitute evidence that
the boxer shorts are non-underwear.
Furthermore, the fact that the garment is composed of
flannel does not remove it from the category of men's underpants.
In today's fashion climate flannel boxer shorts may be worn as
either underpants, sleepwear or shorts. As stated above,
garments which possess the attributes of underpants will be so
classified regardless of other possible classifications.
HOLDING:
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 of 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.
Sincerely,
John Durant, Director