HQ 951981
September 8, 1992
CLA-2 CO:R:C:T 951981 jb
CATEGORY: Classification
TARIFF NO.: 6207.91.3010
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.
FACTS:
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.
ISSUE:
Whether the submitted sample is classifiable as underwear in
subheading 6207.11.0000, HTSUSA, or as other sleepwear in
subheading 6207.91.3010, HTSUSA?
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 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.
HOLDING:
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.
Sincerely,
John Durant, Director
Commercial Rulings Division