CLA-2 R:C:T 958045 CMR
Mr. James Kelly
Barthco International, Inc.
7575 Holstein Avenue
Philadelphia, AP 19153
RE: Reconsideration of New York Ruling Letter (NYRL) 808108 of
April 3, 1995, and District Decision (DD) 807498 of March 13,
1995
Dear Mr. Kelly:
This is in response to your requests of March 20, 1995, and
April 21, 1995, that Customs reconsider its classification
decisions in DD 807498 and NYRL 808108 regarding the
classification of certain boys' boxer shorts. You requested the
rulings on behalf of your client, Salant Corporation. In DD
807498, the submitted garment was classified as boys' sleep
shorts of heading 6207, Harmonized Tariff Schedule of the United
States (HTSUS). In NYRL 808108, the submitted garment was
classified as boys' cotton shorts of heading 6203, HTSUS. You
cite Inner Secrets/Secretly Yours, Slip Op. 95-60, as support for
your request. Samples of the garments at issue were submitted
with your request.
FACTS:
DD 807498 classified style 086037. The garment is a pair of
boys' boxer shorts constructed of 100 percent cotton woven
flannel fabric. The print is described in DD 807498 as a polar
bear print. The sample this office received has a plaid print.
The fabric is indicated to weigh 4.503 ounces per square yard.
The garment has an exposed elastic waistband, a 3-inch fly
opening which does not break the waistband, a side length of just
over 12 inches, and the words "JOE BOXER" embroidered on the
waistband at regular intervals. The sample ruled upon in DD
807498 differs from the one received with this request in that it
had a fly secured by two buttons and a two inch contrasting hem.
The garment was sized for boys 4-7 and 8-20.
NYRL 808108 classified style 084081 which is a pair of boys'
boxer shorts constructed of 100 percent cotton woven flannel -2-
fabric which was indicated to weigh 4.2 to 4.5 ounces per square
yard. The garment is very similar to style 086037. It features
a plaid print and an exposed elastic waistband with the words
"JOE BOXER" embroidered upon it. It has a side length of 17-«
inches. It differs from style 086037 in that the fly opening
which does not break the waistband is less than three inches
long; and the inseam is 6-« inches long whereas in style 086037
the inseam is about 2-« inches long. The garment is sized small,
medium, large and extra-large; though your letter of March 19,
1995, indicates it will be made in boys' sizes 8-20.
The submitted samples indicate the country of origin of the
garments is Egypt.
ISSUE:
Were the boxer shorts at issue, styles 086037 and 084081,
properly classified as boys' sleep shorts of heading 6207, HTSUS,
and boys' cotton shorts of heading 6203, in DD 807498 and NYRL
808108, respectively, or, are they classifiable as boys' cotton
underwear of heading 6207, HTSUS?
LAW AND ANALYSIS:
Classification of goods under the HTSUSA is governed by the
General Rules of Interpretation (GRIs). GRI 1 provides that
"classification shall be determined according to the terms of the
headings and any relative section or chapter notes and, provided
such headings or notes do not otherwise require, according to
[the remaining GRIs taken in order]."
Heading 6207, HTSUS, provides for, among other things, men's
or boys' woven underpants, briefs nightshirts, pajamas, and
similar articles. Subheading 6207.11.0000, Harmonized Tariff
Schedule of the United States Annotated (HTSUSA), provides for
men's or boys' woven cotton underpants and briefs. Subheading
6207.91.3010, provides for men's or boys' woven cotton other
sleepwear. Heading 6203, HTSUS, provides for, among other
things, men's or boys' woven cotton shorts.
The Explanatory Notes to the Harmonized Commodity
Description and Coding System, the official interpretation of the
tariff at the international level, offer no assistance in this
case. However, Customs issued HRL 087940 on September 16, 1991,
in which guidelines for distinguishing between men's underwear
boxers and outerwear boxers were discussed. Customs indicated
therein features which Customs views as indicative of non-
underwear garments. These features are:
1. Fabric weight greater than 4.2 ounces per square yard;
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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; [closed
parentheses missing in original]
7. The side length of a size medium should not exceed 17
inches.
It is Customs' view that 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 garments at issue, styles 086037 and 084081, each
exhibit features which are indicative of non-underwear garments.
Style 086037 has a fabric weight of 4.503 ounces per square yard.
Style 084081 has a side length greater than 17 inches. The
garment specification sheet submitted to Customs indicates that
style 084081 in size medium has a side length of 18 inches. In
addition, style 086037, which has a three inch opening at the
front, and style 084081, which has an opening which is less than
three inches, lack practical and functional flies for a male. In
addition to the size of the front openings on these garments, the
National Import Specialist who specializes in the classification
of underwear garments noted that "the high location of the fly
does not readily serve the corresponding part of the male anatomy
in a practical way."
In your request for reconsideration you have cited Inner
Secrets/Secretly Yours, Slip Op. 95-60, which dealt with the
classification of certain women's cotton flannel boxer shorts.
In that case, the court found that the garment before it had a
fly. The garments at issue here are not identical to the garment
at issue in Inner Secrets/Secretly Yours. In addition, that case
dealt with a woman's garment, whereas these garments are designed
for boys, for whom the existence of a fly is realistic.
Therefore, the factual finding by the court in that case that the
garment at issue therein had a fly has no bearing on whether the -4-
garments at issue herein have a fly within the meaning of the
garment criteria cited above. It is Customs view that if a
garment lacks a practical and functional fly, then it lacks a fly
for purposes of the criteria set forth in HRL 087940. To apply
any other interpretation would make that feature or lack of it
meaningless.
As styles 086037 and 084081 exhibit two of the listed
features which are indicative of non-underwear garments, and
therefore, they are presumptively not underwear. Customs did not
receive sufficient information regarding marketing and
advertising to rebut a presumption that the garments are not
underwear. In fact, the submitted information indicates that the
manufacturer, Salant Children's Apparel Group, a division of
Salant Corporation, is a leading manufacturer of children's
sleepwear.
This office has been informed by the National Import
Specialist who drafted NYRL 808108 that you indicated
specifically in your initial request that the garment at issue
was not sleepwear. As the garment is presumptively not underwear
and that presumption has not been rebutted, and you state it is
not sleepwear, Customs classified the garment, style 084081, as
boys' shorts of heading 6203, HTSUS. This office agrees with
that ruling.
As to DD 807498, the sample submitted for reconsideration
differs substantially from the sample that was ruled upon.
Therefore, this office will not modify DD 807489. We will
classify, however, the garment submitted to us. As it is
virtually identical to style 084081, differing only in the pant
leg length, style 086037 is also classified as boys' shorts of
heading 6203, HTSUS.
HOLDING:
DD 807498 and NYRL 808108 are affirmed. The garments
submitted to this office as part of this reconsideration request
are classified as boys' cotton shorts in subheading 6203.42.4060,
HTSUSA, textile category 347, dutiable at 17.6 percent ad
valorem.
The designated textile and apparel category may be
subdivided into parts. If so, the 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 renegotiations and
changes, to obtain the most current information available, we
suggest you check, close to the time of shipment, the Status
Report On Current Import Quotas (Restraint Levels), an internal
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issuance of the U.S. Customs Service which is updated weekly and
is available for inspection at your 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 your local
Customs office prior to importation of this merchandise to
determine the current status of any import restraints or
requirements.
Sincerely,
John Durant, Director
Commercial Rulings Division