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HQ 562421




August 16, 2002

CLA-2 RR:CR:SM 562421 KSG

CATEGORY: MARKING

Port Director
U.S. Customs Service
301 East Ocean Boulevard
Long Beach, California 90802

RE: Application for Further Review of Protest No. 2704-02-100448; tank-style top; obscured country of origin tag

Dear Director:

This is in reference to a Protest and Application for Further Review filed by counsel on behalf of Briefly Stated, Inc., contesting the Notice to Redeliver for certain imported boy's cotton tops. At the request of counsel, a telephone conference was held on this matter.

FACTS:

This case involves the entry of 2980 dozen boy's cotton sleeveless tank-style shirts imported from Hong Kong into the Port of Los Angeles. The date of entry was January 17, 2002.

The garment, style #BT708STG, is sleeveless and has a U-neck. The garment is white with black capping around the armholes and neck opening. The shoulder straps have a width of 1 1/2 inches. There is a screen print of the cartoon character "Scooby-Doo" on the chest with lettering "Scooby-Doo Soccer." The garment has a plain hemmed bottom. The fabric is a jersey knit with a weight of 170 grams/m2. Counsel states that the shirts have been sold to a national retailer with complementary knit boxer briefs. The retailer will sell the shirts and briefs as separates. The country of origin label is sewn in the shirt at the neck beneath a trademark label.

The shirts have a label sewn-in at the neck that identifies the garment as underwear and not to be used as sleepwear. A picture of the neck tags and price tag was included in the submission. Counsel states that the reference on the tickets to Department 036 indicate the intent of the retailer to sell the item in the underwear department. Further, the invoice and licensing agreement identify the garment as underwear.

The Notice to Mark or Redeliver was issued on January 29, 2002. The protest was filed on March 5, 2002, so it was timely filed.

The website for Briefly Stated Inc. indicates that they manufacture underwear, sleepwear, loungewear and college-licensed activewear.

ISSUES:

Whether the boys' cotton tank-style sleeveless shirt is classified as underwear under subheading 6109.10.0009, HTSUS, or as outerwear under subheading 6109.10.0023, HTSUS.

Whether the country of origin marking satisfies the requirements of 19 U.S.C. 1304.

LAW AND ANALYSIS:

I. Classification of the garment

Pursuant to section 174.24, Customs Regulations (19 CFR 174.24), the criteria for further review, is in pertinent part as follows:

Further review of a protest which would otherwise be denied by the port director shall be accorded to a party filing an application for further review which meets the requirements of section 174.25 when the decision against which the protest was filed:

(a) Is alleged to be inconsistent with a ruling of the Commissioner of Customs or his designee, or with a decision made at any port with respect to the same or substantially similar merchandise;

In this case, counsel argues that the decision by the Port was inconsistent with Headquarters Ruling Letter ("HRL") 962021, dated September 19, 2001. Accordingly, the application for further review was properly granted.

Classification under the Harmonized Tariff Schedule of the United States Annotated ("HTSUS") is made in accordance with the General Rules of Interpretation ("GRI"). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative Section or Chapter Notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRI may then be applied. GRI 6 requires that the classification of goods in the subheadings of headings shall be determined according to the terms of those subheadings, and any related subheading notes and, mutatis mutandis, to the GRI's.

This matter is governed primarily by GRI 6, in that the choice in classification is between two subheadings. The Harmonized Commodity Description and Coding System Explanatory Notes ("ENs") constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings.

There is no disagreement as to the classification of the subject merchandise at the 8-digit level. Subheading 6109.10.00, HTSUS, provides as follows: "T-shirts, singlets, tank tops and similar garments, knitted or crocheted: Of cotton." The issue in this case is whether the merchandise is classified in subheading 6109.10.0009, HTSUS, or 6109.10.0023, HTSUS. Counsel argues that the tops are classified in subheading 6109.10.0009, HTSUS, which provides for "Men's or boys': Underwear: Other (352)." The port classified the merchandise in subheading 6109.10.0023, which provides as follows: "Tank tops and other singlets: Boys' (338)." The issue turns on whether the garments are underwear or outerwear.

Customs dealt with the issue of whether a tank-styled garment was considered underwear or outerwear in HRL 962021, dated September 19, 2001, which involved women's cotton knit tank-styled garments. Customs concluded that the garments in that particular case were underwear. In that case (HRL 962021), the garments were not clearly recognizable as underwear or outerwear. Customs considered other factors such as "environment of sale, advertising and marketing, recognition in the trade of virtually identical merchandise, and documentation incidental to the purchase and sale of the merchandise, such as purchase orders, invoices, and other internal documentation."

Customs has previously dealt with the issue of garments that are potentially ambiguous and capable of more than one use. For instance, Customs has a line of cases dealing with the issue of whether garments are sleepwear or outerwear. Customs discussed this issue in HRL 962871, dated April 18, 2001:

In determining the classification of garments submitted to be sleepwear, Customs usually considers the factors discussed in two court cases that addressed sleepwear. In Mast Industries, Inc. v. United States, 9 CIT 549, 552 (1985), aff'd 786 F.2d 144 (CAFC 1986), the Court of International Trade considered the classification of a garment claimed to be sleepwear. The court cited several lexicographic sources, among them Webster's Third New International Dictionary, which defined "nightclothes" as "garments to be worn to bed." In Mast, the court determined that the garment at issue therein was designed, manufactured, and used as nightwear and therefore was classifiable as nightwear. Similarly, in St. Eve International, Inc. v. United States, 11 CIT 224 (1987), the court ruled the garments at issue therein were manufactured, marketed and advertised as nightwear and were chiefly used as nightwear. Finally, in Inner Secrets/Secretly Yours, Inc. v. United States, 885 F. Supp. 248 (1995), the court was faced with the issue of whether women's boxer style shorts were classifiable as "outerwear" under heading 6204, HTSUS, the court stated the following, in pertinent part:

[P]laintiff's preferred classification is supported by evidence that the boxers in issue were designed to be worn as underwear and that such use is practical. In addition, plaintiff showed that the intimate apparel industry perceives and merchandises the boxers as underwear. While not dispositive, the manner in which plaintiff's garments are merchandised sheds light on what the industry perceives the merchandise to be. Further evidence was provided that plaintiff's merchandise is marketed as underwear. While advertisements also are not dispositive as to correct classification under the HTSUS, they are probative of the way that the importer viewed the merchandise and of the market the importer was trying to reach. Additionally, the merchandise itself may be strong evidence of use.

In International Home Textile, Inc. v. United States, 21 CIT 280 (CIT 1997), the court classified garments as loungewear rather than underwear or sleepwear. The court examined whether the garments "share that essential character of privateness or private activity" and found that the garments did not because they could be "worn at informal social occasions in and around the home and for other individual, non-private activities in and around the house—e.g., watching movies at home with guests, barbequing at a backyard gathering, doing outside home and yard maintenance work, washing the car, walking the dog, and the like." In Regaliti, Inc. v. U.S., 16 CIT 407 (1992), the court stated that it was not highly persuaded by plaintiff's invoices or advertising that referred to garments as "tights."

Neither the chapter notes nor the EN shed light on the difference between underwear and outerwear tank tops. Therefore, we look to the Guidelines for the Reporting of Imported Products in Various Textile and Apparel Categories, CIE 13/88 (1988) ("Guidelines") for assistance.

The Guidelines define "underwear" as follows:

The term "underwear" refers to garments which are ordinarily worn under other garments and are not exposed to view when the wearer is conventionally dressed for appearance in public, indoors or out-of-doors.

Counsel argues that the internal documentation indicates that the apparel is manufactured, marketed and advertised as underwear.

In Mast, the court examined marketing and stated that "most consumers purchase and use a garment in the manner in which it is marketed." The court looked at the design, manufacture, marketing and use of the garment. As discussed in Inner Secrets/Secretly Yours and Regaliti, the internal marketing and advertising documentation is not dispositive. We note that there was no advertising information presented in this case. We examined the internal documentation submitted as evidence of the consumer's use of the garment.

In this case, we believe that the physical characteristics of the garment support the view that the garment is outerwear and would be used by a consumer as outerwear. It has the appearance of an outerwear tank-style garment. The sample is composed of a fabric weight that could be appropriately worn as outerwear. Although counsel asserts that the size specifications of this garment are consistent only with use as underwear, the garment does not appear to be tight-fitting or snug. The garment is sized as "small size 6/7" and would appear to be appropriate for a size small boys' outerwear garment.

The "Scooby-Doo" character appears prominently in dark colors on the front of the garment and the armholes and neck opening have capping in a dark contrasting color. These prominent decorative features and the dark colors on the figure would show through most outerwear garments if the tank-style garment was worn as underwear. We note that the garment has a tag on it that indicates that the garment should not be used as sleepwear and should only be worn as underwear. However, the garment has no physical characteristics that would render it suitable only for being worn in private and we believe that the garment would be worn as outerwear.

Briefly Stated Inc. manufactures loungewear and activewear as well as sleepwear and underwear. The garment is sold as a separate with complementary knit boxer shorts. However, since the shorts and top are sold and priced separately, we do not find this factor dispositive. Because we find that the physical characteristics of the garment in this case are persuasive that the garment would be used as outerwear, we give less weight to the internal documentation submitted by counsel. Accordingly, based on the above, we find that the garment in question is outerwear and properly classified in subheading 6109.10.0023, HTSUS.

II. Country of origin marking

Section 304 of the Tariff Act of 1930, as amended, 19 U.S.C. 1304, provides that, unless excepted, every article of foreign origin (or its container) imported into the United States shall be marked in a conspicuous place as legibly, indelibly, and permanently as the nature of the article (or its container) will permit, in such a manner as to indicate to the ultimate purchaser in the United States the English name of the country of origin of the article. Part 134 of the Customs Regulations (19 CFR Part 134), implements the country of origin marking requirements of 19 U.S.C. 1304.

The country of origin marking must be conspicuous, which is defined in 19 CFR 134.1(k) as "capable of being easily seen with normal handling of the article or container." Further, pursuant to 19 CFR 134.41(b), the ultimate purchaser in the U.S. must be able to find the marking easily and read it without strain. The degree of permanence should be at least sufficient to insure that in any reasonably foreseeable circumstance, the marking shall remain on the article until it reaches the ultimate purchaser unless it is deliberately removed.

Customs ruled in Headquarters Ruling Letter ("HRL") 730915, dated July 26, 1989, that the phrase "Assembled in Mexico" on a label that was beneath (and partially obscured by) two other labels sewn in at the neck of an imported garment did not satisfy the requirements of 19 U.S.C. 1304. The marking on the garment in this case is similar to the marking in HRL 730915; the tag bearing the country of origin marking is obscured by another label. Accordingly, we find that the marking does not satisfy the requirements of 19 U.S.C. 1304 and the port director properly issued the Notice to Mark and/or Redeliver.

HOLDING:

The protest should be denied in full.

In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, you are to mail this decision, together with the Customs Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry or entries in accordance with the decision should be accomplished prior to mailing of this decision. Sixty days from the date of this decision, the Office of Regulations and Rulings will make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.gov, by means of the Freedom of Information Act, and other methods of public distribution.

Sincerely,

Myles B. Harmon, Acting Director
Commercial Rulings Division

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