HQ 953180: Men's woven cotton flannel boxer shorts; men's underpants.

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 953180

                          April 5, 1993

CLA-2  CO:R:C:T  953180 ch

CATEGORY:  Classification

TARIFF NO.:  6207.11.0000

Singer & Singh
Attorneys at Law
525 Seventh Avenue
Suite 1103
New York, New York  10018

RE:  Men's woven cotton flannel boxer shorts; men's
     underpants.

Dear Ms. Singer:

     This is in response to your letter dated December 22, 1992,
requesting tariff classification under the Harmonized Tariff
Schedule of the United States Annotated (HTSUSA), for two pairs
of men's woven cotton flannel boxer shorts.  Samples were
provided to this office for examination.  Please reference your
client, Dothan Apparel, Incorporated.  

FACTS:

     The submitted samples are size medium men's boxer shorts. 
They are constructed from 100 percent woven cotton flannel fabric
and feature fully elasticized waistbands with the elastic exposed
on the interior surface.  These garments do not possess belt
loops, inner or outer pockets or a lining.

     One sample measures approximately 13 1/2 inches across the
relaxed waist; 16 inches from the top of the waistband to the hem
bottom; 13 inches across a single leg opening.  This item
possesses an unsecured fly front opening.

     The second sample measures approximately 14 inches across
the relaxed waist; 16 inches from the top of the waistband to the
hem bottom; 12 1/2 inches across a single leg opening.  This item
possesses a single button closure at the middle of the fly. 

ISSUE:

     What is the proper classification for the subject
merchandise under the 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 order.  

     In light of contemporary fashions trends, it is our practice
to classify boxer shorts as either underwear, sleepwear or shorts
on a case-by-case basis.  See HRL 953005, dated December 24,
1992; HRL 951981, dated September 8, 1992.  We recognize the
following features as 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 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.

     In HRL 951981, we stated:

          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. 

     Although we have not been provided with fabric weights,
neither sample possesses any of the other enumerated features
listed above.  Hence, the garments appear to possess the
attributes of underwear.  

     Underwear is normally worn beneath other garments and is not
exposed to view.  In this case, both samples are constructed from
flannel fabric, which suggests that they may be exposed to view
and used as sleepwear.  However, we have concluded in the past
that flannel boxer shorts possessing the attributes of underwear
remain classifiable as such.  See HRL 953005.  Accordingly, the
subject merchandise will be classified as underwear.

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