HQ 954074

June 11, 1993

CLA-2; CO:R:C:T 954074 ch

CATEGORY: Classification

TARIFF NO.: 6207.91.3010

District Director

Tampa District

4430 East Adamo Drive

Suite 301

Tampa, Florida 33605

RE: Application for further review of Protest No. 1803-93-

100009 under 19 U.S.C., section 1514(c)(2); HRL 951912

affirmed; men\'s cotton flannel boxer shorts; underwear;

sleepwear.

Dear Madam:

The above-referenced protest was forwarded to this office

for further review. We have considered the protest and our

decision follows.

FACTS:

The instant merchandise was the subject of Headquarters

Ruling Letter (HRL) 951912, dated August 27, 1992. In that

ruling, we described the merchandise as follows:

The merchandise at issue consists of two pairs of men\'s

boxer shorts made from woven cotton flannel. Both

samples have a fully elasticized waistband with the

elastic exposed on the interior surface. In addition,

both samples have a fly front opening that does not

break the waistband and measure 16 1/2 inches from the

top of the waistband to the hemmed bottom. One sample

has a button closure at the fly; the other has no

closure. The garments have not yet been assigned style

numbers.

The original binding ruling request filed on behalf of the

importer, Host Apparel, Inc., dated March 26, 1992, contained the

following statement:

Host Apparel Inc. specializes in sleepwear and these

garments will be distributed as such.

On this basis, we classified the boxer shorts as sleepwear,

pursuant to subheading 6207.91.3010, Harmonized Tariff Schedule

of the United States Annotated (HTSUSA).

On February 3, 1993, Host Apparel filed a request for

reconsideration of HRL 951912. As part of this request, Host

furnished this office with two representative samples of the

merchandise. One of the submitted samples features a label which

reads as follows:

Diplomat

Your Guarantee of Sleeping Comfort

A ruling letter disposing of Host\'s request for reconsideration,

designated as HRL 953408, will be issued contemporaneous with our

decision in this protest.

ISSUE:

Whether the instant boxer shorts are classifiable under

subheading 6207.91.3010, which provides for men\'s cotton

sleepwear; or subheading 6207.11.0000, which provides for men\'s

underpants or briefs?

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 additional

criteria such as marketing or other physical attributes are

determinative.

In Host\'s written submission, it contends that the instant

boxer shorts do not possess any of the features enumerated above.

Therefore, the boxer shorts are presumptively underwear. In

addition, reference is made to prior ruling letters in which we

have classified substantially similar boxer shorts as underwear.

In light of this precedent, Host argues that the instant garments

must also be classified as underwear.

For the sake of argument, we will assume that the subject

merchandise does not possess two or more of the features

enumerated above. Therefore, the shorts are presumptively

underwear. However, in this case we find that this presumption

has been rebutted.

As noted above, Host\'s original binding ruling request

contained a statement that it specialized in sleepwear and that

the shorts would be distributed as such. This statement

indicates that classification of the merchandise as underwear

would not reflect its intended use. Although Host has submitted

purchase orders which, it states, reflect orders for the

merchandise from the underwear departments of various retailers,

this evidence alone does not establish that the shorts will be

marketed as such. Indeed, at least one of the submitted samples

is clearly marketed as sleepwear, as evidenced by the legend

\"Your Guarantee of Sleeping Comfort\" found on its label.

Therefore, we conclude that the principal use of the instant

boxer shorts is as sleepwear. Accordingly, the subject

merchandise is properly classified as sleepwear.

We note that the principal use of a multiple use garment may

vary from case-to-case. Boxer shorts may be worn as either

underwear, sleepwear or shorts, depending upon its physical

attributes and marketing. In this case, the shorts possess

features rendering them suitable for use as either underwear or

sleepwear. In this situation, the marketing of the merchandise

bears directly on the issue of principal use. As the instant

shorts are marketed as sleepwear, we find that they are

principally used as sleepwear. However, the identical

merchandise could be classified as underwear if they were

marketed as such. Hence, where tariff classification is

controlled by the use of the article, we are not bound to

classify similar merchandise under identical headings of the

tariff schedule.

HOLDING:

Therefore, based on the foregoing discussion, this protest

should be denied. The subject merchandise is properly classified

under subheading 6207.91.3010, HTSUSA, which provides for men\'s

or boys\' singlets and other undershirts, underpants, briefs,

nightshirts, pajamas, bathrobes, dressing gowns and similar

articles: other: of cotton: other: sleepwear. The applicable

rate of duty is 6.5 percent ad valorem. The textile quota

category is 351.

A copy of this decision should be attached to the CF 19

Notice of Action to satisfy the notice requirement of section

174.30(a), Customs Regulations.

Sincerely,

John A. Durant, Director