The tariff classification of men’s boxer briefs and a box used to package the boxer briefs; China; non-origin geographical reference; 19 CFR 134.36; 19 CFR 134.47

N034418 August 22, 2008 CLA-2-61:OT:RR:NC:TA:354 CATEGORY: Classification TARIFF NO.: 6107.11.0010 Mr. Kevin Maher C-Air Customhouse Brokers 181 S. Franklin Avenue Valley Stream, NY 11581 RE: The tariff classification of men’s boxer briefs and a box used to package the boxer briefs; China; non-origin geographical reference; 19 CFR 134.36; 19 CFR 134.47 Dear Mr. Maher: In your letter dated June 24, 2008, written on behalf of your client, Mann & Bros. Incorporated, you requested a tariff classification ruling. The samples submitted will be returned. This ruling replaces New York Ruling N032065 dated July 14, 2008. Our original response to you inadvertently neglected to address the issue of a paperboard box which you state is re-usable, and the issue of country of origin marking. The submitted sample, style B1921, is a men’s boxer styled brief packed in a two-piece paperboard box. The boxer styled brief is constructed of 94% cotton and 6% spandex knit fabric. The garment features a 1-1/4 inch wide exposed elasticized waistband, a two-button fly front, a Burberry logo located at the lower left bottom leg and hemmed leg openings. Overlock stitching is used to join the fly front panel, gusset crotch, back panel, and two leg panels together. The word "Burberry" is embossed at evenly spaced intervals along the waistband. The boxer brief contains a fabric label sewn to the inside center of the back of the waistband, which features the “Burberry London” name, with another sewn-in fabric label directly underneath which indicates the fiber content and size, and on the reverse, the country of origin and garment care instructions. The statement of origin, which reads “Made in Hong Kong” is not visible unless the label is turned over. The two-piece textured paperboard box features the words “Burberry London” printed on the lid. The box also contains a plastic insert which features “Burberry London” written on the top center. In addition, a sticker is adhered on one of the side panels of the box, which indicates the sizing as well as the country of origin, “Made in Hong Kong” of the undergarment. You state that the box costs $.82 and the boxer brief costs $2.59 CLASSIFICATION: We must determine whether the box is classified separately or with its contents. GRI 5, HTS, which covers cases, containers and packing materials, reads as follows:(a) Camera cases, musical instrument cases, gun cases, drawing instrument cases, necklace cases and similar containers, specially shaped or fitted to contain a specific article or set of articles, suitable for long-term use and entered with the articles for which they are intended, shall be classified with such articles when of a kind normally sold therewith. This rule does not, however, apply to containers which give the whole its essential character; (b) Subject to the provisions of rule 5(a) above, packing materials and packing containers entered with the goods therein shall be classified with the goods if they are of a kind normally used for packing such goods. However, this provision is not binding when such packing materials or packing containers are clearly suitable for repetitive use. GRI 5(a) does not apply to the submitted box because it is not specially shaped or fitted to contain the boxer shorts. GRI 5(b) applies if the box is found not to be suitable for repetitive use. The paperboard box is of a kind “normally” used for packaging and marketing a line of such undergarments. The boxes are not durable and are of a type ordinarily discarded after the contents have been purchased. It is reasonable to conclude that the instant box is not suitable for repetitive use as required by GRI 5(b), therefore the box is classified with its contents pursuant to GRI 5(b). The applicable subheading for style B1921 will be 6107.11.0010, Harmonized Tariff Schedule of the United States (HTSUS), which provides for Men’s or boys’ underpants, briefs, nightshirts, pajamas, bathrobes, dressing gowns and similar articles, knitted or crocheted: underpants and briefs: of cotton . . . men’s. The duty rate will be 7.4 percent ad valorem. Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on World Wide Web at http://www.usitc.gov/tata/hts/. Style B1921 falls within textile category 352. With the exception of certain products of China, quota/visa requirements are no longer applicable for merchandise which is the product of World Trade Organization (WTO) member countries. Quota and visa requirements are the result of international agreements that are subject to frequent renegotiations and changes. To obtain the most current information on quota and visa requirements applicable to this merchandise, we suggest you check, close to the time of shipment, the “Textile Status Report for Absolute Quotas” which is available on our web site at www.cbp.gov. For current information regarding possible textile safeguard actions on goods from China and related issues, we refer you to the web site of the Office of Textiles and Apparel of the Department of Commerce at otexa.ita.doc.gov. COST OF PACKING: Section 402(b)(1)(A) of the TAA requires that an addition to the price actually paid or payable be made for "the packing costs incurred by the buyer with respect to the imported merchandise." Section 402 (h)(3) of the TAA defines packing costs as "the cost of all containers and coverings of whatever nature and of packing, whether for labor or materials, used in placing merchandise in condition, packed ready for shipment to the United States." Accordingly, the cost of the boxes should be added to the price actually paid or payable. COUNTRY OF ORIGIN MARKING: Section 134.1(b), Customs Regulations (19 CFR 134.1(b)), defines "country of origin” as the country of manufacture, production or growth of any article of foreign origin entering the U.S. As provided in section 134.41(b), Customs Regulations (19 CFR 134.41(b)), the country of origin marking is considered conspicuous if the ultimate purchaser is able to find the marking easily and read it without strain.Customs has recognized that the presence of a geographic location other than the country in which the article was produced on an imported article or its container may mislead the ultimate purchaser as to the true country of origin. Thus, in cases where the name of a location in the U.S. or the name of any foreign country or locality other than the country or locality in which the article was manufactured or produced appears on an imported article or its container, section 134.46, Customs Regulations (19 CFR 134.46), provides that there shall appear, legibly an permanently, in close proximity to such words the name of the country of origin preceded by “Made in,” “Product of,” or other words of similar meaning. By contrast, 19 CFR 134.47 is less stringent, providing that when as part of a trade name, trademark or souvenir mark, the name of a location other than the country of origin appears, the name of the actual country of origin must appear in close proximity or "in some other conspicuous location". In other words, the latter provision triggers only a general standard of conspicuousness. In either case, the name of the country of origin must be preceded by "Made in", "Product of", or other similar words. You have indicated that “Burberry London” is a registered trademark. If “Burberry London” is not a registered trademark, the requirements of 19 CFR 134.46 may be applicable. If “Burberry London” is a registered trademark, 19 CFR 134.47 applies when a locality reference appears as part of a trademark. In this regard, we have determined that the country of origin marking on the paperboard box would satisfy the requirements of 19 CFR 134.47. However, the country of origin marking on the reverse side of the sewn-in label in the boxer brief would not satisfy the conspicuous location requirement of 19 CFR 134.47. The location of the country of origin marking on the reverse side of the sewn-in fabric label of the briefs is not conspicuously located in that it is not easy to find and should instead be located on the front side of the sewn-in fabric label. This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 C.F.R. 177). A copy of the ruling or the control number indicated above should be provided with the entry documents filed at the time this merchandise is imported. If you have any questions regarding the ruling, contact National Import Specialist Deborah Marinucci at (646) 733-3054. Sincerely, Robert B. Swierupski Director National Commodity Specialist Division