CLA-2 CO:R:C:G 080047 jlj 821634
Marian R. Shelton, Esq.
Grunfeld, Desiderio, Lebowitz
& Silverman
12 East 49th Street
New York, New York 10017
RE: Classification of a men's shirt which has epaulets and
certain other features
Dear Ms. Shelton:
You requested a reconsideration of New York letter
821636, dated January 26, 1987. You submitted a sample of the
merchandise covered by 821636 along with your request.
FACTS:
New York letter 821636 held that a men's sport shirt,
style 1538, imported from Taiwan for your client Woolrich Inc.
was ornamented and was classified under the provision for
other men's or boys' wearing apparel, ornamented, of man-made
fibers, knit, other, coats, shirts, suits, swimming trunks and
other swimwear, trousers, slacks, and shorts: shirts, sport,
other, in item 381.3144, Tariff Schedules of the United States
Annotated (TSUSA). Textile category 640 applies to this
tariff number.
The sample submitted is a woven men's sport shirt, 65
percent polyester and 35 percent cotton. The shirt has a full
front opening with a button closure. It has four front
pockets and one rear pocket which is formed by a large textile
overlay with a button at either open end (i.e., the top and
bottom of the textile overlay are sewn down, but the sides are
left open except for a button on each side). Above the left
breast pocket there is a non-adjustable tab secured by means
of a button. In addition, there is a small pocket on the left
sleeve of the garment. An accordion-like pouch extends from
the bottom of the left pocket to the left side seam; it
measures approximately 3 inches in width and 3 inches in
depth. The shirt has epaulets with button closures.
- 2 -
You question whether the tab over the left breast pocket,
the epaulets, and the open pocket on the back of the shirt
constitute ornamentation. You claim that the three features
are functional on shirts used by sport fishermen because the
fishermen can carry all their gear with them and still have a
hand free to push back bushes.
You believe that the shirt is not ornamented and that it
is classified under the provision for other men's or boys'
wearing apparel, not ornamented, of man-made fibers, not knit,
other, coats, shirts, suits, swimming trunks and other
swimwear, trousers, slacks, and shorts: sport shirts not
having two or more colors in the warp and/or the filling, in
item 381.9400, TSUSA. Textile category 640 applies to this
tariff number.
ISSUE:
Do the epaulets, the open back pocket, and the tab over
the left breast pocket constitute ornamentation for tariff
purposes?
LAW AND ANALYSIS:
You argue that all three questioned features are
functional. You claim that the epaulets permit the fisherman
to carry securely any article with a shoulder strap, e.g., a
camera, a fishing net or a creel.
You argue that the open-ended back pocket could be used
to carry equipment such as a windbreaker or a rain poncho
which would not fit easily into a regular-sized pocket.
Finally, you claim that the nonadjustable textile tab
above the left breast pocket allows the fisherman to hold his
fishing rod steady while changing bait. You state that the
base of the rod is placed in the accordion-like pocket at the
left of the waist, while the top of the rod is secured by the
tab buttoned over the rod. You argued that this leaves both
of the fisherman's hands free to add new tackle to his rod and
fishing line.
Textile fabric is one of the forms of ornamentation
specifically listed in Headnote 3, Schedule 3, TSUSA. For
tariff purposes, a feature listed in that headnote will
constitute ornamentation where the decorative effect produced
on a garment is paramount, while the functional purpose served
by the feature is only incidental. Blairmoor Knitting Corp.
v. United States, 60 Cust. Ct. 388, C.D. 3396 (1968).
- 3 -
We find that the epaulets are primarily decorative
inasmuch as nothing that was very heavy could be attached and
carried that way. Customs has held previously that epaulets
on shirts constitute ornamentation.
The back pocket is more of an overlay than a pocket. It
is approximately 15 inches wide and 10 inches high. On either
side there is a button closure approximately halfway down the
pocket. This results in a 5 inch opening on either side of
the button. Most articles inserted into the so-called pocket
would fall out. The position of the rear pocket (approxi-
mately half way down the back) also makes it difficult for the
wearer of the shirt to have access to it.
The use of the textile tab over the left breast pocket
which is advanced by counsel would be quite awkward. If the
base of the fishing rod is put in the accordion-like pouch and
the top of the rod is put through the tab, the tab is not
capable of holding the rod steady. The fisherman would have
difficulty attaching new tackle to the wobbling rod and
fishing line. It would be easier if the rod was anchored on
the ground.
Both the tab above the left breast pocket and the open-
ended rear pocket appear to have no real use. In the absence
of any evidence of functionality, we find that these two
features are primarily decorative.
HOLDING:
The epaulets, the back pocket and the textile tab over
the left breast pocket constitute ornamentation for tariff
purposes. The instant sport shirt is classified in item
381.3144, TSUSA. New York letter 821636 is hereby affirmed.
The proposed Harmonized Tariff Schedule of the United
States Annotated (HTSUSA) is schedule to replace the TSUSA.
The HTSUSA provision applicable to the instant shirt is
6205.30.0070, men's woven sport shirts of man-made fibers.
This classification represents the present position of the
Customs Service regarding the status of this merchandise under
the proposed HTSUSA. If there are changes before enactment,
this advice may not continue to be applicable.
Sincerely,
John Durant, Director
Commercial Rulings Division
6cc: A.D., Seaport (NIS-355-85)
1cc: John Durant
1cc: CITA
CO:R:C:G:JLJOHNSON:lw 8/1/88 8/2/88