HQ 080047: Classification of a men's shirt which has epaulets and certain other features

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                                       HQ 080047

                                    August 26, 1988





            CLA-2 CO:R:C:G  080047 jlj  821634

            CATEGORY:  Classification

            TARIFF NO.:  381.3144; 6205.30.0070

            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