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HQ 087379


October 26 1990

CLA-2:CO:R:C:G 087379 DRR 842587

CATEGORY: CLASSIFICATION

TARIFF NO.: 6204.62.4065

Mr. Michael Strubing
The GAP, Inc.
900 Cherry Avenue
P.O. Box 60
San Bruno, California 94066

RE: Classification of boxer shorts; modification of NYRL 842587, dated July 6, 1989

Dear Mr. Strubing:

This is in further response to your letter dated March 22, 1989, requesting the classification of four styles of boxer shorts, under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA).

FACTS:

The merchandise is represented by four samples of cotton boxer shorts, styles 25051 and 25052, which come in men's sizes and style 13116, which comes in children's sizes. New York Ruling Letter (NYRL) 842587, dated July 6, 1989, classified the men's boxer shorts as undergarments under subheading 6207.91.3000, HTSUSA, and the children's boxer shorts under subheading 6208.91.3020, HTSUSA. We have had occasion to review that ruling and have found it necessary to modify the decision.

ISSUE:

What is the proper classification of the merchandise at issue?

LAW AND ANALYSIS:

Classification of merchandise under the HTSUSA is in accordance with the General Rules of Interpretation (GRI). GRI 1 provides that the classification of articles is to be determined according to the terms of the headings and any relevant section or chapter notes.

It is Customs opinion that boxer-style undergarments are not commonly sold for children, nor commercially viable. Therefore, style 13116 is properly classifiable as children's shorts under Heading 6204. Note 8, Chapter 62, provides that articles which cannot be identified as men's or boys' garments or as women's or girls' garments are to be clasified as women's or girls' garments. Subheading 6204.62.4065, HTSUSA, provides for trousers, bib and brace overalls, breeches and shorts, of cotton, shorts, girls', other.

HOLDING:

The children's boxer shorts in question are classified under subheading 6204.62.4065, HTSUSA, as girls' shorts with duty at the rate of 17.7 percent ad valorem and subject to textile category 348.

Due to the changeable nature of the statistical annotation and the restraint (quota/visa) categories applicable to textile merchandise, you should contact your local Customs office prior to importation of this merchandise to determine the current status of any import restraints or requirements.

This notice to you should be considered a modification of NYRL 842587 under 19 CFR 177.9(d)(1) (1989), copy enclosed. It is not to be applied retroactively to NYRL 842587 (19 CFR 177.9(d)(2) (1989)) and will not, therefore, affect the transaction for the importation of your merchandise under that ruling. However, for the purposes of future transactions in merchandise of this type, NYRL 842587 will not be valid precedent. We recognize that pending transactions may be adversely affected by this modification, in that current contracts for importation arriving at a port subsequent to the release of HRL 087379 will be classified under the new ruling. If such a situation arises, you may, at your discretion, notify this office and apply for relief from the binding effects of the new ruling as may be dictated by the circumstances.

Sincerely,

John Durant, Director

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