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HQ 956034


April 13, 1994

CLA-2 CO:R:C:T 956034 ch

CATEGORY: CLASSIFICATION

TARIFF NO.: 6203.42.4060

Dotti Hatcher
The Gap, Incorporated
Two Harrison
San Francisco, California 94105

RE: Classification of boys' woven cotton boxer shorts from Sri Lanka or Hong Kong.

Dear Ms. Hatcher:

This is in response to your letters of January 4, 1994 and January 24, 1994, on behalf of The Gap, Incorporated, requesting tariff classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) for a pair of boys' woven cotton boxer shorts. A sample was provided to this office for examination.

FACTS:

The submitted sample, style 212618, is a boys' size medium boxer short. This item features yellow and green stripes and is composed of woven cotton. You state that the short will be offered in sizes XXS through XXL. Its fabric weight is approximately 5.2 ounces per square yard. The garment measures approximately 10 1/4 inches across the relaxed waist; 12 1/4 inches from the top of the waistband to the hem bottom; 10 1/2 inches across a single leg opening. It features a fully elasticized waistband with the elastic exposed on the interior surface and a one button closure. In your second correspondence you advise us that in the future the button will be replaced with a single snap closure. The short does not possess belt loops, inner or outer pockets or a lining.

Style 21268 will be packaged with a wrap around paper band. The front of the label facing the consumer reads:

GAP
Kids

Boys Boxers

The rear of the label includes the legend:

Gapkids Classic
Boys Underwear

You have enclosed specification sheets which indicate that the garment is "outerwear" and will be sold in the summer, 1994 season.

Finally, you note that in New York Ruling Letter (NYRL) 887018, dated June 25, 1993, styles 212615 and 21216 were classified as boys' underwear. You observe that these styles are similar to style 212618, with the exception of the fabric weight.

ISSUE:

What is the proper tariff classification for the subject merchandise?

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 criteria such as marketing or other physical attributes are determinative.

The boxer short criteria were adopted with a view to adult garments. In this instance the side length of style 212618 is 12 inches, which is less than the 17 inch standard set forth in criterion seven. However, the instant pair of shorts is designed for children. We are of the opinion that a pair of boys' underwear with a side length of 12 inches would not comfortably fit beneath another garment. As underwear is generally worn against the skin, we conclude that the side length of the instant short is an indication that it is not underwear.

In addition, you state that the fabric weight for style 212618 is 5.2 ounces per square yard, which exceeds the 4.2 ounces per square yard standard set forth in criterion one. The fabric is heavy and would tend to be uncomfortable when worn under another garment, particularly during the summer. We note that the fabric weight differentiates the instant garment from the shorts which were classified as underwear in NYRL 887018. As style 212618 possesses at least two non-underwear features, it is presumptively not underwear.

Although the wrap around paper band features the words "Gapkids Classic Boys Underwear," this legend does not face the consumer at the point of sale. Furthermore, your specification sheets refer to style 212618 as outerwear. Hence, the submitted marketing information does not rebut the presumption that the garment is outerwear.

In prior rulings concerning the classification of boxer shorts, we have concluded that sleepwear refers to garments primarily worn to bed. See HRL 954404, dated August 11, 1993; HRL 954350, dated July 30, 1993. In this instance, we conclude that style 212618 will not be primarily worn to bed. The garment is suitable for use in and around the home, as well as out of doors. For this reason, style 212618 shall be classified as a pair of boys' shorts.

HOLDING:

The subject merchandise is classifiable under subheading 6203.42.4060, HTSUSA, which provides for men's or boys' suits, ensembles, suit-type jackets, blazers, trousers, bib and brace overalls, breeches and shorts (other than swimwear): trousers, bib and brace overalls, breeches and shorts: of cotton: other: other, shorts: boys', other. The applicable rate of duty is 17.7 percent ad valorem. The textile quota category is 347.

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 the subject of 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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