HQ 0956360 - Revocation of NYRL 890405; classification of silk boxer shorts; classifiable in Heading 6207 - United States International Trade Commision Rulings

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HQ 956360

July 8, 1994

CLA-2 CO:R:C:T 956360 CC

CATEGORY: CLASSIFICATION

TARIFF NO.: 6207.19.0020

Eleanore Kelly-Kobayashi
Rode & Qualey
295 Madison Avenue
New York, NY 10017

RE: Revocation of NYRL 890405; classification of silk boxer shorts; classifiable in Heading 6207

Dear Ms. Kelly-Kobayashi:

In New York Ruling Letter (NYRL) 890405, dated October 22, 1993, we issued a ruling to you, classifying silk boxer shorts in Heading 6203 of the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). We have had the occasion to review this ruling and find that it is in error.

Pursuant to section 625, Tariff Act of 1930 (19 U.S.C. 1625), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act, Pub. L. 103-182, 107 Stat. 2057, 2186 (1993), notice of the proposed revocation was published June 1, 1994, in the Customs Bulletin, Volume 28, Number 22.

FACTS:

Two samples of the subject merchandise were available for examination. This merchandise, designated as style number 983, is men's 100 percent woven silk boxer style shorts. Both samples feature an enclosed waistband, a placketed fly front opening, and hemmed leg openings. One of the samples, a size S, is primarily red with a logo of the San Francisco 49ers printed on the shorts. It has side seams measuring 15 inches, a relaxed waist measuring 13 inches across, and a single leg opening measuring 12 inches. This sample also has a fly opening with a single button closure. The second sample, a size L, is primarily black with depictions of red lips covering the shorts. It has side seams measuring 16-1/2 inches, a relaxed waist measuring 15 inches across, and a single leg opening measuring 13-1/2 inches.

ISSUE:

Whether the merchandise at issue is classifiable as shorts of Heading 6203, HTSUSA, or as underwear of Heading 6207, HTSUSA?

LAW AND ANALYSIS:

Classification of merchandise under the HTSUSA is in accordance with the General Rules of Interpretation (GRI's), taken in order. GRI 1 provides that classification shall be determined according to the terms of the headings and any relative section or chapter notes.

Heading 6203, HTSUSA, provides for men's or boys' breeches and shorts, among other articles. Heading 6207, HTSUSA, provides for men's or boys' underpants and briefs, among other articles.

Generally, boxer shorts are classifiable as underwear, sleepwear or shorts on a case-by case basis. See, e.g., Headquarters Ruling Letter (HRL) 953005, dated December 24, 1992, and HRL 087940, dated September 16, 1991. We have recognized 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 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);

7. The side length of a size medium should not exceed 17 inches.

We have ruled that boxer shorts that contain more than one of the features listed above create a presumption that the merchandise is not underwear. This presumption, however, is rebuttable where it can be shown that additional criteria such as marketing or other physical attributes are determinative.

Three of the above factors have been listed in support that the subject merchandise is shorts: an enclosed waistband, a fly closure, and the side length. There is only a single fly closure and the side length is under 17 inches. Consequently, the merchandise at issue contains only one of the features listed above, an enclosed waistband. The subject merchandise, therefore, is presumptively underwear.

You claimed in your submission for the original ruling that the silk boxers at issue are marketed as shorts. You state that the importer sells this merchandise to the official licensee of among others, the National Football League and the National Basketball Association. This licensee sells the silk boxers to sporting goods stores, with the garments carrying the logos of various collegiate and professional sports teams. These garments, you state, have a hang tag identifying this merchandise as silk shorts. You enclosed photographs in which the shorts are displayed in a sporting goods store presented with a football jersey in one instance and a basketball jersey in another.

We do not believe that the marketing and physical attributes of the merchandise at issue rebut the presumption that it is underwear. The available samples are too flimsy and lightweight to be worn as outerwear. In addition, one of the available samples has no fly closure which is also indicative of underwear. Concerning the marketing, a hangtag affixed to one of the samples reads "bottom drawers TOPS IN BOTTOMS." It also depicts a cartoon of a dog standing on its hind legs wearing only an undershirt and boxers. Thus this piece of marketing also indicates that this merchandise is underwear. The marketing is at best conflicting and, along with the physical attributes, does not rebut the presumption that the subject merchandise is underwear. Consequently, the merchandise at issue is classifiable as underwear of Heading 6207.

In a letter dated June 30, 1994, you made a claim for detrimental reliance on NYRL 890405. The detrimental reliance regulations, contained in 19 CFR 177.9, allow a maximum delay of the effective date of a ruling of 90 days. Section 625 delays the effective date of a ruling approximately 120 after publication of the proposed revocation in the Customs Bulletin. Accordingly, we will not consider your claim for detrimental reliance.

HOLDING:

The merchandise at issue is classified under subheading 6207.19.0020, 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 other textile materials, other: containing 70 percent or more by weight of silk or silk waste. The rate of duty is 11.2 percent ad valorem, and the textile category is 752.

Accordingly, NYRL 890405, dated October 22, 1993, is hereby revoked.

Due to the changeable nature of the statistical annotation

(the ninth and tenth digits of the classification) 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.

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 renegotiations 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 internal issuance of the U.S. Customs Service, which is available for inspection at your local Customs office.

In accordance with section 625, this ruling will become effective 60 days from its publication in the Customs Bulletin. Publication of rulings or decisions pursuant to section 625 does not constitute a change of practice or position in accordance with section 177.10(c)(1), Customs Regulations (19 CFR 177.10(c)(1)).

Sincerely,

John Durant, Director

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