HQ 957234: Request for Reconsideration of Pre-classification 801356; men's woven boxer shorts of cotton flannel; underwear; PC 801356 superseded

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                                 
                            HQ 957234
                                 
                        February 16, 1995

CLA-2  CO:R:C:T  957234  jb

CATEGORY: CLASSIFICATION

TARIFF NO:  6207.11.0000

Doris Acosta
Warnaco
90 Park Avenue, 12th Floor
New York, NY 10016

RE:  Request for Reconsideration of  Pre-classification 801356; men's woven boxer shorts of 
     cotton flannel; underwear; PC 801356 superseded

Dear Ms. Acosta:

     This is in regard to your letter dated October 19, 1994, requesting reconsideration of pre-classification decision (PC) 801356, dated August 31, 1994, for a pair of men's woven boxer shorts. 
A sample was provided to this office for examination.

FACTS:

     The sample submitted, referenced style number U1200,  is a pair of men's 100 percent
woven cotton flannel shorts, size Large.  The shorts feature a fully exposed elasticized waistband,
an unsecured fly front and a side seam measuring 14 inches.  The side seam has a two inch vent at
the bottom.  You claim that in PC 801356, the subject merchandise was incorrectly classified in
subheading 6203.42.4050, HTSUSA, which provides for men's shorts.  

ISSUE:
          
     Whether the garment is classifiable under subheading 6207.11.0000, HTSUSA, which
provides for men's underpants and briefs, of cotton, or subheading 6203.42.4050, HTSUSA,
which provides for men's woven cotton shorts?


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  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 HQ 087940, dated September 16, 1991, Customs enumerated accepted attributes 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.

     Customs has ruled on virtually identical merchandise in the past.  Those rulings have
determined that garments which display more than one of the above features give rise to the
presumption that the garment is not underwear.  However, this presumption is rebuttable where it
can be shown that criteria such as marketing or other physical attributes are determinative. Thus,
where the garment has shown not to have any, or just one "nonunderwear" feature, classification
has been accorded as underwear.   (See, e.g., HQ 950265, September 26, 1991; HQ 089907,
dated September 27, 1991; HQ 950890, dated January 15, 1992; HQ 951750, dated July 7, 1992;
HQ 953005, dated December 24, 1992; HQ 953180, dated April 5, 1993; and HQ 955305, dated
December 29, 1993).
.
     The submitted sample does not exhibit any of the enumerated features above, which would
give rise to the presumption that the garment is a nonunderwear garment.  Accordingly, it is
Customs view that the subject merchandise was incorrectly classified as outerwear shorts in
subheading 6203.42.4050, HTSUSA. 





HOLDING:

     The subject merchandise, referenced style number U1200,  is correctly 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 and the
quota category is 352.  Accordingly, PC 801356 is superseded to reflect these corrections with
respect to style number U1200.

     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 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
                              Commercial Rulings Division