HQ 953392: Application for further review of Protest No. 2809-93- 100075; classification of woven silk boxer shorts; men's; women's; unisex; underwear.

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 953392

                       September 20, 1993

CLA-2 CO:R:C:T 953392 ch

CATEGORY:  Classification

TARIFF NO.:  6207.19.0020

District Director
U.S. Customs Service
555 Battery Street
Post Office Box 2450
San Francisco, California  94126

Re:  Application for further review of Protest No. 2809-93-
     100075; classification of woven silk boxer shorts;
     men's; women's; unisex; underwear.

Dear Sir:

     The above-referenced protest was forwarded to this office
for further review.  We have considered the protest and our
decision follows.

FACTS:

     The submitted samples, styles 3002, 3006, 3007 and 3008, 
are size medium woven silk boxer shorts.  Style 3006 is a
children's size medium.  Each sample features a turned over
waistband and a fly front opening with a one button closure.  The
garments do not possess belt loops, pockets, or a lining, and
measure less than 17 inches from the top of the waistband to the
hemmed bottom. 

     Affixed to each garment is a hangtag and label which
indicates that they are sold as part of the "Mansilk" line of
clothing.  The hangtags possess a photograph of a male model clad
in underpants and an undershirt.

     The importer states that styles 3002, 3007 and 3006 possess
relaxed waist and leg opening measurements as follows:

                          Relaxed Waist

          SMALL          MEDIUM         LARGE          XLARGE

3002        24             26             28             30
3007        25             27             29             31
3006        16             18             20 

                           Leg Opening

          SMALL          MEDIUM         LARGE          XLARGE

3002      24 1/2         25 1/2         26 1/2         27 1/2
3007        26             27             28             29
3006        21             22             23

Style 3008 appears to have leg openings which measure
approximately the same as the relaxed waist.

     In addition, the importer has submitted seat measurements
for the garments which are as follows:

                        Seat Measurements

          SMALL          MEDIUM         LARGE          XLARGE

3002      21 1/2         22 1/2         23 1/2           25
3007      23 1/4         24 1/4         25 1/4         26 1/2
3006      16 1/2         17 1/2         18 1/2

     In a written submission of September 10, 1993, the importer 
has filed two price lists which read, in pertinent part, as
follows:

             Men's 1993 Transitional Fall Price List
                    Mansilk Outer Collection
                         Printed Shorts

     Make a fashion statement, with our sporty printed silk
     shorts.  Sitting at a cafe you will find that our
     unusual, one of a kind prints are great conversation
     starters.  Designed for comfort with a button fly and
     covered elastic.

     M-333P    Printed Charmeuse Athletic Cut
               Short - SMLXL.

                         *      *     *

     Our sporty silk shorts are great for running, working
     out at the gym, sitting at the beach, hiking...Ready
     for anything!  Our shorts with a button fly and covered
     elastic are designed for the active male.

                             Solids

     M-333H    Sandwashed Habutai Athletic Cut,
               Short - SMLXL

The importer states that style 3007 corresponds to item 333 which
are featured in the price lists.

     In addition, miscellaneous sales confirmations have been
submitted, which allude to the instant merchandise as "men's
woven shorts."  

     Finally, we are informed that "Mary Green Enterprises is a
wholesaler, selling primarily through salespersons who carry
samples.  Therefore, it does not have catalogs or
advertisements."

     This protest encompasses various entries between April 30,
1992 and September 1, 1992.  These shipments were entered under
subheading 6203.49.3050, HTSUSA, which provides for men's silk
shorts.  However, they were liquidated under subheading
6204.69.3040, which provides for women's silk shorts.  

ISSUE:

     What is the proper tariff classification for the instant
boxer 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 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.

     Effective January 1, 1993, Chapter 62, Note 8 provides that:

     Garments of this chapter designed for left over right
     closure at the front shall be regarded as men's or
     boys' garments, and those designed for right over left
     closure at the front as women's or girls' garments. 
     These provisions do not apply where the cut of the
     garment clearly indicates that it is designed for one
     or other of the sexes.

Thus, men's or boys' garments are currently distinguished from
women's or girls' garments on the basis of the direction of the
closure.

     However, prior to January 1, 1993, Chapter 62, Note 8,
stated that:

     Articles of this chapter which 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.

Hence, unisex garments were classified as women's or girls'
garments at the time the instant merchandise was entered.

     In Headquarters Ruling Letter (HRL) 087940, dated September
16, 1991, we set forth criteria with respect to the
classification of boxer shorts:

          In classifying the merchandise at issue we have
     reviewed the distinction 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.

Therefore, if the garments possess single leg openings greater
than the relaxed waist, or if the size specifications so
indicate, they will be classified as unisex garments.  

     In this case, excluding the child's garment, the leg
openings measure the same as or less than the size of the relaxed
waist.  Hence, based upon the fourth criteria cited above, they
are designed for men.  Moreover, the garments appear to be
marketed for men based upon the presence of the "Mansilk" label
and the photograph of the male model on the hangtags.  Therefore,
we conclude that the instant boxer shorts are garments designed
for men.  

     However, the criteria set forth in HRL 087940 also
distinguish between underwear and outerwear garments.  Boxer
shorts possessing more than one of the enumerated features are
presumptively outerwear.  In this case, styles 3002, 3007 and
3008 possess only one non-underwear feature (the enclosed
waistband).  Moreover, these items are composed of silk, which is
a lightweight fabric that will be comfortable when worn beneath
other garments.  Hence, they appear to possess the
characteristics of underwear and will be classified as such
absent convincing evidence to the contrary.  

     Style 3006 possesses leg openings greater than the relaxed
waist in addition to an enclosed waistband.  Under normal
circumstances these two non-underwear features would give rise to
a presumption that the garment is outerwear.  However, this
article has been designed for children and features a waist much
more narrow than a typical pair of boxer shorts.  Hence, we are
of the opinion that the leg openings are not indicative of a non-
underwear garment in this instance.  As style 3006 is otherwise
similar to styles 3007 and 3008, it shall also be classified as
underwear absent evidence to the contrary.

     As noted above, the importer has submitted price lists
referring to the garments as "outerwear," as well as invoices
which list these items as "men's woven shorts."  However, Mary
Green Enterprises concedes that it is a wholesaler of boxer
shorts.  Therefore, it has no control over how these articles
will be marketed at retail.  Indeed, the hangtags feature a male
model wearing only undergarments.  This fact indicates that the
boxer shorts are in fact marketed as underwear.  In this instance
the submitted marketing materials are inconclusive.  Accordingly,
we will classify these garments on the basis of their design
characteristics, which favor the underwear classification.  

HOLDING:

     The subject merchandise is classifiable under subheading
6207.19.0020, HTSUSA, which provides for men's or boys' singlets
and other undershirts, underpants, briefs, nightshirts, pajamas,
bath-robes, dressing gowns and similar articles:  underpants and
briefs:  of other textile materials, other:  containing 70
percent or more by weight of silk or silk waste.  The applicable
rate of duty is 11.2 percent ad valorem.

     Since the rate of duty under the classification indicated is
more than the liquidated rate, you are instructed to deny the
protest in full.  

                         Sincerely,



                         John Durant, Director