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HQ 957234




February 16, 1995

CLA-2 CO:R:C:T 957234 jb

CATEGORY: CLASSIFICATION

TARIFF NO: 6207.11.0000

Doris Acosta
Warnaco
90 Park Avenue, 12th Floor
New York, NY 10016

RE: Request for Reconsideration of Pre-classification 801356; men's woven boxer shorts of cotton flannel; underwear; PC 801356 superseded

Dear Ms. Acosta:

This is in regard to your letter dated October 19, 1994, requesting reconsideration of pre-classification decision (PC) 801356, dated August 31, 1994, for a pair of men's woven boxer shorts. A sample was provided to this office for examination.

FACTS:

The sample submitted, referenced style number U1200, is a pair of men's 100 percent woven cotton flannel shorts, size Large. The shorts feature a fully exposed elasticized waistband, an unsecured fly front and a side seam measuring 14 inches. The side seam has a two inch vent at the bottom. You claim that in PC 801356, the subject merchandise was incorrectly classified in subheading 6203.42.4050, HTSUSA, which provides for men's shorts.

ISSUE:

Whether the garment is classifiable under subheading 6207.11.0000, HTSUSA, which provides for men's underpants and briefs, of cotton, or subheading 6203.42.4050, HTSUSA, which provides for men's woven cotton 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 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 HQ 087940, dated September 16, 1991, Customs enumerated accepted attributes of nonunderwear 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.

Customs has ruled on virtually identical merchandise in the past. Those rulings have determined that garments which display more than one of the above features give rise to the presumption that the garment is not underwear. However, this presumption is rebuttable where it can be shown that criteria such as marketing or other physical attributes are determinative. Thus, where the garment has shown not to have any, or just one "nonunderwear" feature, classification has been accorded as underwear. (See, e.g., HQ 950265, September 26, 1991; HQ 089907, dated September 27, 1991; HQ 950890, dated January 15, 1992; HQ 951750, dated July 7, 1992; HQ 953005, dated December 24, 1992; HQ 953180, dated April 5, 1993; and HQ 955305, dated December 29, 1993).
.
The submitted sample does not exhibit any of the enumerated features above, which would give rise to the presumption that the garment is a nonunderwear garment. Accordingly, it is Customs view that the subject merchandise was incorrectly classified as outerwear shorts in subheading 6203.42.4050, HTSUSA.

HOLDING:

The subject merchandise, referenced style number U1200, is correctly 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 and the quota category is 352. Accordingly, PC 801356 is superseded to reflect these corrections with respect to style number U1200.

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 subject to 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

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