CLA-2 RR:TC:TE 960423 jb
TARIFF NO: 6207.19.0000
Ms. Fran Livingston
Joe Boxer Corporation
984 Folsom Street
San Francisco, CA 94107
RE: Supersession of Pre-classification 885849; men's woven silk
boxer shorts; underwear
Dear Ms. Livingston:
On May 14, 1993, Customs issued to you Pre-classification
decision (PC) 885849, which included the classification for four
styles (style numbers 70, 121, 129 and 138) of men's woven boxer
shorts. This is to inform you that upon review of that ruling we
have found that the classification determination for the woven
shorts is incorrect. The appropriate analysis and classification
is set forth below.
FACTS:
The subject shorts (representative of all the referenced
styles), consist of a pair of men's size Medium woven shorts made
of 100 percent silk lightweight fabric. The shorts feature a
covered elasticized waistband, a placketed fly front secured by a
one button closure, hemmed leg openings, and side seams measuring
13 inches. The hemmed leg opening exceeds the relaxed waist by
approximately one inch. In PC 885849, the subject merchandise
was incorrectly classified in subheading 6203.49.3050, HTSUSA,
which provides for men's outerwear shorts.
ISSUE:
Whether the garment is classifiable under subheading
6207.19.1000, HTSUSA, which provides for men's underpants and
briefs, of silk, or subheading 6203.49.3050, HTSUSA, which
provides for men's outerwear woven silk shorts?
LAW AND ANALYSIS:
Classification of goods under the HTSUSA is governed by the
General Rules of Interpretation (GRI). GRI 1 provides that
classification is determined in accordance with the terms of the
headings of the tariff and any relative section or chapter notes.
Where goods cannot be classified on the basis of GRI 1, the
remaining GRI will be applied, in order.
In HQ 087940, dated September 16, 1991, Customs enumerated
accepted attributes of nonunderwear 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.
Customs has ruled on virtually identical merchandise in the
past. Those rulings have determined that garments which display
more than one of the above features give rise to the presumption
that the garment is not underwear. However, this presumption is
rebuttable where it can be shown that criteria such as marketing
or other physical attributes are determinative.
.
Although the submitted sample does exhibit two of the
enumerated features above (an enclosed waistband and a single leg
opening greater than the relaxed waist), it is the opinion of
this office that the physical appearance of the subject shorts
makes them unsuitable as an outerwear garment. The sample is too
flimsy and lightweight to be worn outdoors, easily revealing the
contours of the wearer's body. For purposes of modesty, it would
be inappropriate for the wearer to wear this garment someplace
other than the privacy of his home. See also HQ 956360, dated
July 8, 1994, which classified a similar garment as underwear in
heading 6207, HTSUS, because of the flimsy and lightweight nature
of the silk fabric. Furthermore, we note that Hoser Imports dba
Joe Boxer, is recognized in the industry as an "underwear"
company.
Accordingly the subject merchandise is correctly classified
in subheading 6207.19.1000, HTSUSA.
HOLDING:
PC 885849 is superseded to reflect the proper classification
of this merchandise in subheading 6207.19.1000, HTSUSA. This
decision is effective 60 days from the date of this ruling
letter.
The subject merchandise, referenced styles 70, 121, 129 and
138, are correctly classifiable under subheading 6207.19.1000,
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: containing 70 percent or more by weight
of silk or silk waste. The rate of duty is 8.4 percent ad
valorem and the quota category is 752.
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 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
Tariff Classification Appeals
Division