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