United States International Trade Commision Rulings And Harmonized Tariff Schedule
faqs.org  Rulings By Number  Rulings By Category  Tariff Numbers
faqs.org > Rulings and Tariffs Home > Rulings By Number > 1995 HQ Rulings > HQ 957980 - HQ 958372 > HQ 958045

Previous Ruling Next Ruling
HQ 958045





August 2, 1995

CLA-2 R:C:T 958045 CMR

CATEGORY: CLASSIFICATION

TARIFF NO.: 6203.42.4060

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;

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
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

Previous Ruling Next Ruling

See also: