CLA-2 CO:R:C:T 950731 CMR
Mr. Burt Witkin
Smart Shirts Ltd.
120 West 45th Street
27th Floor
New York, New York 10036
RE: Classification of a pair of men's cotton flannel boxer shorts
Dear Mr. Witkin:
This ruling is in response to your letter of November 13,
1991, requesting the classification of a pair of men's cotton
flannel boxer shorts. You indicate that the boxers are underwear
and that the company you represent plans to manufacture very
similar boxer shorts in Sri Lanka.
FACTS:
The submitted sample is a pair of 100 percent cotton woven
flannel boxer shorts. The fabric weight ranges from 4.8 to 5.0
ounces per square yard. The garment features a 1-1/2-inch self-
fabric elasticized waistband, a fly front secured by a button in
the middle, hemmed leg bottoms and a rear center seam.
In your supplemental letter of December 20, 1991, you
indicated that the boxer shorts would likely be sold to Mervyn's
Department Stores and Retail Venture. Mervyn's submitted a
separate ruling request on the same merchandise. Included in
their submission was a copy of an advertisement for the flannel
boxer shorts.
ISSUE:
Is the submitted sample boxer short classifiable as
underwear of subheading 6207.11.0000, HTSUSA, or as other
sleepwear of subheading 6207.91.3010, HTSUSA?
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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]."
In HRL 087940 of September 16, 1991, features which Customs
believes to be indicative of non-underwear garments were
enumerated. Those 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;
7. The side length of a size medium should not exceed 17
inches.
In HRL 087940, Customs stated:
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.
The garment at issue herein is of a fabric weight greater
than 4.2 ounces per square yard and has an enclosed waistband.
Therefore, it has more than one of the above features which leads
Customs to presume it is not men's underwear. This presumption
is rebuttable. However, based on the information you have
provided, along with information provided by Mervyn's, we do not
believe you have succeeded in showing that the boxer shorts in
question are men's underwear. Indeed, the advertisement supplied
by Mervyn's identifies the boxers as "Charles Goodnight flannel
boxers", Customs is inclined to view the boxer shorts as sleep
bottoms. In fact, in their initial ruling request dated August
28, 1991, which was rejected for insufficient information,
Mervyn's stated that they had previously brought the 100 percent
cotton plaid flannel boxer shorts into the port of San Francisco
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as men's sleepshorts. Of course, in the subsequent resubmission
of their ruling request, Mervyn's indicated the boxer shorts were
underwear and that they had entered them as such into the port of
San Francisco.
HOLDING:
Based on the construction of the boxer shorts at issue,
i.e., the weight of the fabric and the enclosed waistband; the
lack of evidence to rebut the presumption created by these
factors that the boxer shorts are not underwear; and, the initial
ruling request identification of the garment as sleepshorts by
Mervyn's and the advertising contained in their subsequent
submission, Customs believes the boxer shorts at issue are
properly classified as men's other sleepwear of cotton in
subheading 6207.91.3010, HTSUSA, textile category 351, dutiable
at 6.5 percent ad valorem.
You indicated Mervyn's will be a purchaser of the boxer
shorts and an importer of record for the goods. Since they
apparently sent in a ruling request for the identical garment, we
will send them a copy of this ruling in response to their
request.
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