HQ 087940

September 16, 1991

CLA-2 CO:R:C:T 087940 CRS

CATEGORY: Classification

TARIFF NO.: 6204.62.4055

Ronald W. Gerdes, Esq.

Sandler, Travis & Rosenberg, P.A.

1120 19th Street, N.W.

Washington, D.C. 20036-3605

RE: Boxer shorts with unisex styling or non-underwear features

not classifiable as men\'s underwear. Note 8, Chapter 62.

Dear Mr. Gerdes:

This is in reply to your letter dated March 6, 1991, in

support of a ruling request dated August 29, 1990, from Mr. Kit

Craig Crider of the Banana Republic, your client, concerning the

classification of boxer shorts under the Harmonized Tariff

Schedule of the United States Annotated (HTSUSA). Numerous

samples of Banana Republic boxer shorts were submitted with the

original request of 29 August; however, this ruling addresses

only the style described below. In addition, you have provided

numerous samples of similar merchandise. These additional

samples were provided in support of your client\'s position and

are not the subject of this ruling request.

FACTS:

The merchandise in question consists of a pair of woven, 100

percent cotton boxer shorts, style 31252, size adult medium. You

have submitted size specifications for the shorts at issue.

Those measurements which are relevant are excerpted below. All

measurements are in inches.

XS S M L XL

Waist relaxed 21 23 25 28 31

Waist extended 42 44 46 49 52

Bottom 26 27 28 29 31

The garment has a fly front with snap closure, and is

printed in a color described as an \"Solid Chambray.\" The shorts

are marked \"Made in Hong Kong.\" The above specifications were

not attached specifically to style 31252 but were submitted with

your letter of March 6th, together with an additional sample of

your client\'s merchandise, a \"stamp\" print boxer, style 12411, as

an example of the type of garment imported by the Banana

Republic. In this regard you state that:

\[The stamp print boxer\] is representative of the style

sold in Banana Republic stores. While the print of the

fabric will vary (approximately 8-10 different prints

are offered each season) the basic construction of the

garment, i.e., length of fly, length of inseam, width

of leg, unitary elastic waistband, the snap on the fly,

etc., remains the same.

We have also obtained specification measurements for style

12436A, which are identical to those for style 12411.

In addition to your client\'s specifications for boxer

shorts, this office has obtained size specifications from three

domestic underwear producers on a range of boxer short styles.

Size specifications typical of the measurements of men\'s boxer

short underwear are set forth below. Only the measurements that

are directly comparable to the measurements of the merchandise in

question are shown. All measurements are in inches.

S M L XL

Waist relaxed 25 29 32 36

Waist extended 36 40 44 48

Seat width (Bottom) 22 24 26 29

You contend that the instant boxer shorts are classifiable

as men\'s underwear. In support of this you state that Customs

has uniformly classified garments with the design features of the

merchandise in question as men\'s underwear. In particular, you

note that New York Ruling Letters (NYRL) 850329 and 850330 dated

March 19, 1990, NYRL 851059 dated April 20, 1990, and NYRL 842587

dated July 6, 1989, issued to your client, classified various

styles of boxer shorts as men\'s underwear of heading 6207. In

Headquarters Ruling Letter (HRL) 087939 dated November 28, 1990,

however, similar merchandise was classified as women\'s shorts of

heading 6204, HTSUSA.

ISSUE:

Whether the style 31252 boxer shorts are classifiable as

underpants or as shorts.

LAW AND ANALYSIS:

Attached to your submission of March 6, 1991, were numerous

examples of boxer shorts, labeled Exhibits A - LL, purchased at

different locations around the country. In addition, numerous

catalogues and advertisements were provided in which various

types of boxer shorts were illustrated. You maintain that these

materials support the conclusion that boxer shorts constitute a

class or kind of merchandise principally used, made, marketed and

sold as men\'s underwear.

Specifically, you argue that the Banana Republic boxers, and

thus style 31252, are classifiable as men\'s underpants pursuant

to the terms of heading 6207. General Rule of Interpretation

(GRI) 1. Although you maintain that the Banana Republic boxer

shorts should be classified pursuant to GRI 1, you also contend

that their principle use is as underwear and that consequently,

they warrant classification in heading 6207 under Additional U.S.

Rule of Interpretation 1(a).

In support of your client\'s position, you cite nine rulings

issued by Customs from September 1986 through October 1990, in

which boxer shorts were classified as underwear. On this basis

you maintain that there appears to be a uniform and established

practice to classify the type of garment at issue as men\'s

underwear. However, for reasons which are set forth below we

consider the instant merchandise to be distinguishable from

boxer short underwear. Furthermore, Customs Headquarters has not

published any rulings on boxer short underwear under the HTSUSA

that would establish a uniform practice (19 CFR 177.10(b)).

Indeed, we note that the rulings issued by this Office under the

HTSUSA concerning boxer shorts have resulted in these articles

being classified as men\'s shorts as well as men\'s and women\'s

sleepwear. HRL 087436 dated September 25, 1990; HRL 088489 dated

April 18, 1991; and HRL 088192 dated February 20, 1991.

Consequently, Customs does not recognize the existence of a

uniform and established practice with respect to the garments in

question.

In the event that Customs were to decide that there had been

no uniform practice with regard to the instant merchandise, you

have requested that public comment be sought prior to any

decision on your client\'s merchandise. We do not consider this

to be warranted since it is likely that a majority of the type of

boxer shorts attached to your March 6th submission would, if

imported, continue to be classified as underwear. Thus we do not

anticipate any dislocation in the underwear trade as a result of

this ruling. We have consulted the major domestic men\'s

underwear manufacturers through our National Import Specialists

and through the Committee for the Implementation of Textile

Agreements and are satisfied that the criteria set forth in this

ruling represent commercially realistic distinctions between

underwear and outerwear.

In NYRL 850329, NYRL 850330 and NYRL 851059, nine styles of

the Banana Republic\'s boxer shorts were classified under the

provision for men\'s underwear of heading 6207. In HRL 087939, a

tenth and separate style of your client\'s merchandise, style

12437, was held to be classifiable as women\'s shorts of heading

6204\. In so holding we distinguished the Banana Republic shorts

from men\'s underwear on the basis of their styling features and

cut. In particular, we noted the presence of a snap closure on

the fly, the smaller than normal cut of the waist and the wider

than normal cut of the seat. On the basis of what we deemed to

be their unisex styling, the style 12437 shorts were classified

as women\'s shorts of heading 6204. We also observed the

influence of changing fashions and the fact that it was

increasingly popular to wear boxer shorts as a form of outerwear

rather than solely as underwear. You argue, however, that HRL

087939 is not supported by the evidence and that the Banana

Republic boxer shorts are properly classifiable as underwear.

Four headings are potentially applicable to the garments at

issue: heading 6207, HTSUSA, which provides for, inter alia,

men\'s or boys\' underpants, briefs and similar articles; heading

6208, HTSUSA, which provides for, inter alia, women\'s or girls\'

briefs, panties and similar articles; heading 6203, HTSUSA, which

provides for, inter alia, men\'s or boys\' shorts; and heading

6204, HTSUSA, which provides for, inter alia, women\'s and girls\'

shorts.

Note 8, Chapter 62, HTSUSA, provides that woven apparel that

cannot be identified as either men\'s or boys\' garments or as

women\'s or girls\' garments are to be classified in the headings

covering women\'s or girls\' garments.

Contrasting the measurements for style 31252, size medium,

with measurements for size medium supplied by the three largest

domestic manufacturers of men\'s underwear, a number of

significant differences can be observed. First, the relaxed

waist of style 31252 is narrower for all size ranges than is the

relaxed waist typical of men\'s underwear. For example, the

relaxed waist of the style 31252 medium is 25 inches whereas the

typical relaxed waist for men\'s underwear is 29 inches. When

stretched, however, style 31252\'s waist is larger than the

extended waist of men\'s underwear, e.g., 46 inches as compared to

40 inches for size medium.

Second, style 31252\'s leg opening measures 28 inches; a

typical men\'s medium underwear boxer leg opening measures

approximately 25 inches. Comparing these measurements with the

relaxed waist measurements above, it can be seen that the leg

opening of style 31252 exceeds the width of its relaxed waist.

Correspondingly, the leg opening of a typical garment

manufactured and sold by domestic producers of men\'s underwear is

narrower than the width of its relaxed waist.

Third, style 31252\'s seat measures 29 inches; as far as we

can ascertain from the specifications provided by the major U.S.

producers of men\'s underwear, men\'s medium boxer short underwear

typically measure 24 inches in the seat.

Customs considers these measurements an indication that the

garment at issue is not constructed solely for men but rather is

designed as a unisex garment to fit men and women. Thus, for

example, the cut of the waist. In its relaxed state (25 inches)

the waist of a size medium is small enough so that the garment

can be worn by those with smaller waists (generally women); but

the waist expands to 46 inches when stretched so that the garment

can also be worn by those with larger waists (generally men).

The specifications obtained from men\'s underwear manufacturers

indicate that men\'s underwear boxers are not designed in this

manner, that is, to fit both smaller and larger waist sizes. In

addition, whereas style 31252 and all Banana Republic boxers are

produced in sizes extra small to extra large, men\'s underwear

typically range in size from small to extra large. Furthermore,

within these size ranges, we are advised by the National Import

Specialists that a production run of men\'s boxers is comprised of

18 percent small, 33 percent medium, 33 percent large and 18

percent extra large garments. In contrast, we are advised that a

production run of Banana Republic garments consists of 10 percent

extra small, 20 percent small, 40 percent medium, 20 percent

large and 10 percent extra large. Comparing the production runs

it can be seen that while 50 percent of typical men\'s underwear

consists of large and extra large garments, only 30 percent of

the Banana Republic boxers are in this range, suggesting once

again, therefore, that these articles are designed for the unisex

market rather than for men.

You state that the specifications upon which we have based

our analysis constitute an insufficiently broad sample size from

which to draw conclusions. However, since the date of your

Freedom of Information Act request we have obtained additional

size specifications on a variety of styles. Moreover, this

Office and the National Import Specialist have discussed the size

specifications with representatives of the companies concerned

and are confident that they accurately reflect the typical cut

and design of men\'s underwear.

You also contend that in comparing the Banana Republic size

medium to a domestic manufacturer\'s size medium that Customs is

comparing apples and oranges rather than like with like. Instead

you assert that the Banana Republic large (34-36 waist) should be

compared with a standard men\'s underwear medium (34-36 waist).

While we agree that in contrasting the Banana Republic medium

with a standard men\'s underwear medium that different articles

are being compared, we do not agree that this invalidates the

analysis. On the contrary, we believe this supports our position

that the Banana Republic garments are unisex in design.

The fact that boxer shorts similar to the merchandise in

question are indeed worn by women finds support in numerous

articles and advertisements. For example, the J.Crew

Spring/Summer 1991 catalogue, at 50, prefaces its advertisement

for boxer shorts as follows:

Men\'s(?)

boxer underwear

No question: this is a classic cut of men\'s underwear.

So why have we been seeing them worn by women\...in

public\...from Key West to Kaui? Color, pattern, and

comfort have a great deal to do with it. All cotton.

Cut generously with fly front, 4 inseams. Deep (1)

fabric-encased elastic waistband\...Even waist sizes 26-

40\.

The boxers advertised include solids, stripes, floral, daisy and

other multicolored prints. One photograph shows a woman standing

at water\'s edge wearing a style of the boxer shorts, apparently

over a bathing suit. As pictured in the advertisement, the

width of the leg openings exceeds the width of the relaxed waist.

Boxer shorts were also the subject of a recent feature in

the Los Angeles Times.

Today\'s bold patterns, bright colors and handsome

haberdashery prints in combed cottons and silks remain

unseen, of course, under business suits and other-work

week garb, but lately have been turning into outerwear.

They peek out from under gym shorts or are worn over

tight spandex shorts a la Andre Agassi. And yes, women

wear them, too.

Id., Oct. 28, 1990, (Magazine) at 33-34.

Similarly, Lamneck, DNR, December 5, 1988, at 29, observes

that boxer shorts are worn by both sexes as more than underwear:

Young women wear them almost anywhere but

underwear, from classrooms to beaches, while young men

are exposing them more discreetly by letting the boxer

hang out under shorts. Also, many adult men are

wearing more sophisticated patterned boxers around the

house as loungewear and sleepwear.

We do not contend that boxer shorts should be classified on the

basis of fashion trends. However, we do note that fashions have

changed. In view of this Customs deems it appropriate to

consider to a garment\'s construction in order to determine

whether it has the characteristics of underwear or outerwear.

Having reviewed the construction of the garment in question,

we note that it differs significantly from that which is typical

of men\'s underwear, the extent that it would appear to be

designed for both men and women. Nevertheless, it has certain

features, such as the fly, which would suggest a man\'s garment.

Accordingly, applying Note 8, Chapter 62, HTSUSA, style 31252 is

identifiable neither as a men\'s garment nor as a women\'s garment.

Consequently, it is classifiable pursuant to Note 8, in the

headings covering women\'s or girls\' garments.

Thus only two headings of the four cited above now remain in

play: heading 6204 (women\'s and girls\' shorts); and heading 6208

(women\'s and girls\' briefs, panties and similar articles). As

for the latter possibility, boxer shorts are not worn by women as

underwear and are therefore a class of merchandise separate and

distinct from the articles of heading 6208.

Heading 6204, HTSUSA, provides for, inter alia, women\'s and

girls\' shorts. Boxers are worn by women and occasionally by men,

as outerwear, i.e., as shorts. Lamneck, supra, at 29. Sales to

women would appear to have helped spur the growth in the market

for boxer shorts.

And it\'s no longer exclusively a man\'s world\...women,

teens, even little ones have jumped into the ring and

are loving the comfort and freedom of these elastic-

waist, loose-fitting-shorts. A knock-out worn alone

for jogging or lounging or as a snappy warm-up over

leotards\....

Orvis, Spring 1991, at 42. Furthermore, some of the catalogues

attached to your March 6th submission portray garments similar to

style 31252 in a manner that would indicate that such garments

are shorts. Apart from the presence of pockets, there would

appear to be little difference between the garments portrayed and

the merchandise in question. See e.g., The La Costa Spa, Spring

1991, at 40-41(F); Boston Proper, Spring Selections, 1991, at

47(C); R.T.W., Ready to Wind-Down (Spiegel), Spring 1991, at 26-

27\.

However, the fact that boxer shorts can be worn as outerwear

is not determinative of their classification. In this respect

Customs does not consider the issue to be one of principal use,

but rather one solely within the purview of GRI 1. Accordingly,

those garments that have the characteristics of men\'s underpants

will be classified as such. You have enumerated some of the

design features one would not expect to find on men\'s boxer short

underwear and indeed, have precluded garments from classification

as such in the past. Letter of March 6, 1991, at 41.

In classifying the merchandise at issue we have reviewed

the distinctions between underwear and outerwear, and believe

that the following features are 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 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 (not including the

waistband, or button or zipper fly closures;

7\. The side length of a size medium should not exceed 17

inches.

Although no one feature is determinative, the presence of more

than one of the above features gives rise to the presumption that

a boxer style garment is either outerwear or a unisex garment

rather than men\'s underwear. This presumption is rebuttable,

however, and the above criteria will be evaluated in conjunction

with advertising and marketing information. In addition, size

specifications will be considered and compared to those supplied

by domestic underwear manufacturers.

The fourth criteria above provides a test for distinguishing

men\'s garments from unisex garments and thus accomplishes nothing

more than what is required by Note 8, Chapter 62. The comparison

of the leg opening to the relaxed waist is merely an easy method

for the import specialist to effect this distinction.

You assert that Exhibits A-KK represent merchandise similar

to the Banana Republic garments. Although we do not have size

specifications for Exhibits A-KK, we have compared leg openings

to waist size. On this basis it appears likely that the majority

of the samples attached to your submission of March 6th would be

classifiable as men\'s underwear. Factors such as color, print,

single snap closures at the fly, and price are not taken into

account and have no impact on a garment\'s classification.

With regard to the specific merchandise imported by Banana

Republic, the information you have provided suggests that these

garments are unisex. You have not provided any advertising

materials to indicate that garments such as style 31252 are sold

as underwear. We are advised by our National Import Specialists

that the Banana Republic is recognized in the trade for selling

outerwear garments to men and women, and is not identified with

the men\'s underwear trade. Moreover, the garments sold by Banana

Republic are not directed toward one sex. There are no separate

underwear departments nor do the stores have separate men\'s and

women\'s departments.

HOLDING:

The style 31252 boxer short is classifiable in subheading

6204.62.4055, HTSUSA, under the provision for women\'s or girls\'

suits, ensembles . . . and shorts; trousers, bib and brace

overalls, breeches and shorts; of cotton; other; other; other;

shorts; women\'s. They are dutiable at the rate of 17.7 percent

ad valorem and are subject to textile quota category 348.

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 internal

issuance of the U.S. Customs Service, which is available for

inspection at your 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 your local

Customs office prior to importation of this merchandise to

determine the current status of any import restraints or

requirements.

As a result of the foregoing, HRL 087939 dated November 28,

1990, is affirmed.

In order to insure uniformity in Customs classification of

this merchandise and eliminate uncertainty, we are revoking NYRLs

850329, 850330 and 851059 to reflect the above classification

effective with the date of this letter. However, if, after your

review, you disagree with the legal basis for our decision, we

invite you to submit any arguments you might have with respect to

this matter for our review. Any submission you wish to make

should be received within thirty days of the date of this letter.

This notice to you should be considered a revocation of NYRL

850329, NYRL 850330 and NYRL 851059 under 19 CFR 177.9(d)(1).

It is not to be applied retroactively to NYRLs 850329, 850330 and

851059 (19 CFR 177.9(d)(2)) and will not, therefore, affect past

transactions for the importation of your client\'s merchandise

under these rulings. However, for the purposes of future

transactions in merchandise of this type, NYRLs 850329, 850330

and 851059 will not be valid precedent. We recognize that

pending transactions may be adversely affected by this

modification, in that current contracts for importations arriving

at a port subsequent to this decision will be classified pursuant

to it. If such a situation arises, your client may, at its

discretion, notify this office and apply for relief from the

binding effects of this decision as may be warranted by the

circumstances. However, please be advised that in some instances

involving import restraints, such relief may require separate

approvals from other government agencies.

Sincerely,

John Durant, Director

Commercial Rulings Division