HQ 955659: NYRL 891733 affirmed; classification of men's woven cotton boxer shorts; marketing.

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 955659

                         April 19, 1994

CLA-2 CO:R:C:T 955659 ch

CATEGORY:  Classification

TARIFF NO.:  6203.42.4050

Don Stango
Foster Industries, Incorporated
358 Fifth Avenue
New York, New York  10001-2209

Re:  NYRL 891733 affirmed; classification of men's woven
     cotton boxer shorts; marketing.

Dear Mr. Stango:

     This is in response to your letter of December 27, 1993,
requesting reconsideration of New York Ruling Letter (NYRL)
891733, dated November 19, 1993, which concerned the tariff
classification under the Harmonized Tariff Schedule of the United
States Annotated (HTSUSA) of a pair of men's woven cotton boxer
shorts.  A sample was provided to this office for examination.

FACTS:

     The submitted sample, style 3552, is a pair of men's size
large woven cotton boxer shorts.  It features a fully elasticized
waistband with the elastic exposed on the inner surface.  The
garment possesses a fly front opening which does not break the
waistband and a one button closure.  It measures approximately 16
1/2 inches from the top of the waistband to its hemmed bottom; 14
inches across the relaxed waist; 13 inches across a single leg
opening.  This article does not possess belt loops, inner or
outer pockets or a lining.  It is comprised from fabric weighing
approximately 4.0 ounces per square yard.

     The garment possesses a label with the legend "Good Night
Mickey" and a cartoon representation of the Disney character
Mickey Mouse.  Mickey Mouse is also depicted on the exterior of
the short in the guise of Santa Claus or adorned with other
clothing associated with Christmas.
 
     In response to a request for marketing information from our
New York office, you submitted an advertisement for a pair of
plaid boxer shorts and stated that style 3552 will be marketed in
a similar fashion.  The plaid shorts are marketed as follows:

     PLAID ABOUT YOU

     The most comfortable plaid boxers you'll ever own. 
     Brushed cotton flannel with a button fly and elastic
     waist.  Wear them in or out...anywhere you please.

     In NYRL 891733, we classified style 3552 under subheading
6203.42.4050, HTSUSA, as men's woven cotton shorts.  You contend
that style 3552 is properly classified under subheading
6207.11.0000, HTSUSA, as men's woven cotton underpants.

ISSUE:

     What is the proper tariff classification for the woven
cotton boxer shorts?

LAW AND ANALYSIS:

     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 953487, dated April 22, 1993;
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.

     Boxer shorts which display more than one of the above
features are presumptively not underwear.  However, this
presumption is rebuttable where it can be shown that criteria
such as marketing or other physical attributes are determinative.
In this instance, the garment does not possess any of the non-
underwear features.  For this reason, style 3552 is presumptively
classified as underpants.

     However, the submitted marketing information leads us to
conclude that the garment will not be worn principally as an
undergarment.  You state that style 3552 will be advertised in a
manner consistent with certain plaid shorts.  The shorts are
marketed as articles worn "in or out...anywhere you please." 
From this language we infer that style 3552 is a multi-purpose
garment which may be worn in or around the home or even out of
doors.  Indeed, the "Good Night Mickey" legend suggests that the
shorts may be worn as sleepwear or loungewear.  In prior
decisions, we have determined that boxer style shorts worn in
this fashion are classified as shorts.  See HRL 954404, dated
August 11, 1993; HRL 954333, dated August 11, 1993.  Based on the
foregoing, we conclude that the presumption that this garment is
a pair of underpants has been rebutted.  Hence, it is properly
classified as a pair of men's shorts.  

HOLDING:

     NYRL 891733 is hereby affirmed.  The subject merchandise is
classifiable under subheading 6203.42.4050, HTSUSA, which
provides for men's or boys'  trousers, bib and brace overalls,
breeches and shorts:  of cotton:  other:  other, shorts:  men's. 
The applicable rate of duty is 17.7 percent ad valorem.  The
textile quota category is 347.

     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