CLA-2 CO:R:C:T 956360 CC
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
Commercial Rulings Division