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HQ 967051




June 24, 2004

CLA 2 RR:CR:TE 967051 SG

CATEGORY: CLASSIFICATION

TARIFF NO: 6107.12.0010; 6109.90.1047

Mr. Mel Shapiro, President
Terramar® Sports Worldwide, Ltd.
10 Midland Avenue
Port Chester, New York 10573-8071

RE: Classification of men’s fleece zippered T-neck collar pullover and fleece pants; underwear vs. outerwear

Dear Mr. Shapiro:

This is in response to your letter of April 2, 2004, requesting a binding classification ruling on two men’s garments, pursuant to the Harmonized Tariff Schedule of the United States (HTSUS). You describe the garments as Terramar base layer or underwear styles. You advise that for over 30 years, Terramar has been engaged in the sale and distribution of thermal underwear to the ski and outdoor markets. You also advise that Terramar is also the licensee for Columbia Sportswear's line of base layer garments. Two samples and two catalogs were submitted.

FACTS:

The sample identified as style W6097 is a pair of men’s pants constructed of 95% polyester/5% spandex fleece EC2® knit fabric, size extra large. It is constructed of five panels- a front and rear panel which extend from the waistband to below the knees, an inner leg panel running continuously from below one knee to below the other knee, and two lower leg panels. The inner leg panel is sewn to the front and back panels. The front, back and inner leg panel are joined to the lower leg panels by a horizontal seam. The pants are constructed in such a manner that there is no front or back rise. The pants have a fully covered elasticized waistband, side seams, and a hemmed leg bottom. Flatlock seam construction is used throughout. A small rectangular applique is sewn near the waist.

The sample identified as style W6107 is an upper body garment constructed of 95% polyester/5% spandex fleece EC2® knit fabric, size extra large. It features a brushed fleece "T-neck" collar (which resembles a two-inch high turtleneck) with a ten-inch long zipper, raglan hemmed sleeves, a hemmed bottom with a slightly longer back tail, and flatlock seam construction throughout. A small rectangular applique is sewn on the left side of the garment near the bottom hem.

A hang-tag is attached to the waistband of each garment stating the garment excels as a base layer and can double as activewear. The tag indicates that the garment is made of expedition-weight micro-stretch fleece fabric. The fleece is described as warm, breathable, insulates, quick drying, helps control odor, pulls moisture away from the skin for rapid evaporation, and keeps the wearer dry, warm and comfortable. The tag indicates the garment is made of EC2® Qwik-Dri™Electostatic fabric that uses negatively charged particles to pull moisture away from the skin for rapid evaporation. The Terramar catalog describes the EC2® Qwik-Dri™ process as uniquely and permanently modifying the fiber as to improve its ability to move and release moisture. In warm weather, it keeps the body dry and cool and in cold weather, it helps the fabric evaporate body moisture and dry quickly to insulate and retain heat.

The goods are manufactured in China. The garments are merchandised and sold as underwear to virtually every ski, sporting goods, camping and outdoor store throughout the United States, and also many mail order companies, such as Cabela's, LL Bean, EMS, REI, Land's End, and the like.

You believe the garments should be classified as underwear. You advise that Terramar is virtually 100% involved in the underwear or base layer business; that all of your garments "are advertised, promoted, displayed, merchandised and sold as underwear." You have submitted catalogs that you claim specifically indicate that the merchandise is to be used as underwear. You state that all your garments are sold in underwear departments. You indicate that all of your mail order customers feature your garments in the underwear section of their catalog. You advise that they will be used as a base layer (underwear) with other clothing layered over them, and that they are seldom, if at all, worn by themselves.

ISSUE:

Whether the subject merchandise is properly classifiable as underwear or as outerwear garments?

LAW AND ANALYSIS:

Classification of goods under the HTSUS is governed by the General Rules of Interpretation (GRI's). GRI 1 provides that classification shall be determined according to the terms of the headings and any relative section or chapter notes. Merchandise
that cannot be classified in accordance with GRI 1 is to be classified in accordance with subsequent GRI's.

Heading 6107, HTSUS, provides for, inter alia, men’s knit underpants, briefs, pajamas and similar articles. The term "underwear" generally 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. In Children's Hose Inc. v. United States, 55 Cust. Ct. 6, 8, C.D. 2547 (1965), the court examined the term "underwear" and appeared to conclude that underwear is a garment of an intimate nature which is worn under an outer garment and not meant to be seen when worn. If it is determined that the subject pants are classifiable as outerwear or loungewear, the applicable heading for the pants is heading 6103, HTSUS, which provides for, inter alia, men’s knit trousers and shorts.

Heading 6109, HTSUS, provides for, inter alia various types of underwear which are worn above the waist. Subheading 6109.90.1047, HTSUSA, provides for men's or boys' thermal undershirts of man-made fibers. If it is determined that the subject pullover is classifiable as outerwear or loungewear, the applicable heading for the pullover is heading 6105, HTSUS, which provides for, inter alia, men’s knit shirts.

We must then determine whether the two garments are classified as underwear or outerwear.

In the instant case, a physical examination of the garments in an effort to determine whether the garments at issue are outerwear or underwear leads us to the conclusion that they are somewhat ambiguous and not clearly recognizable as underwear or outerwear. The pants, when presented without packaging, advertising, and marketing information, is distinguishable from other outerwear fleece pants insofar as the lack of a center seam, the atypical inner leg panel, and the presence of horizontal leg seams. Moreover, the fleece fabric is not of a type or weight of fabric generally used for underwear garments. Fleece fabrics are commonly used for casual outerwear garments, not underwear. Generally, the underwear trade in the United States recognizes only plain, lightweight jersey or interlock fabric as conducive for the manufacture of underwear. See HQ 950885, dated April 10, 1992. The zippered pullover, when presented without packaging, advertising, and marketing information appears to be indistinguishable from other fleece-lined pullovers that are outerwear garments. In addition, both the fleece fabric and the zippered high neck are features not generally found on underwear. In past rulings, Customs and Border Protection (CBP) has stated that the crucial factor in the classification of a garment is the garment itself. As the court pointed out in Mast Industries, Inc. v. United States, 9 CIT 549, 552 (1985), aff’d, 786 F.2d 144 (CAFC, 1986), "the merchandise itself may be strong evidence of use." Mast at 552, citing United States v. Bruce Duncan Co., 50 CCPA 43, 46, C.A.D. 817 (1963).

In addition we note that in St. Eve Int’l Inc. v. United States, 267 F. Supp. 2d 1371 (2003), the Court of International Trade dealt with the classification of camisoles as underwear garments in subheading 6109.10.0037, HTSUSA, or as tank tops in subheading 6109.10.0060, HTSUSA. The Court gave consideration to the general criteria for classification set forth in United States v. Carborundum Company, 63 CCPA 98, C.A.D. 1172, 536 F. 2d 373 (1976), cert. denied, 429 U.S. 979 (hereinafter Carborundum). Those criteria include: the general physical characteristics of the article, the expectation of the ultimate purchaser, channels of trade, environment of sale (accompanying accessories, manner of advertisement and display), use in the same manner as merchandise which defines the class, economic practicality of so using the import, and recognition in the trade of this use.

When confronted with garments which are claimed to be of a particular class, yet resemble articles of another class, CBP will first examine the article itself and its particular design features and thereafter any other extrinsic evidence 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. It should be noted that CBP considers these factors in totality and no single factor is determinative of classification as each of these factors viewed alone may be flawed. For instance, CBP recognizes that internal documentation and descriptions on invoices may be self serving as was noted by the court in Regaliti, Inc. v. United States, 16 CIT 407 (May 21, 1992). CBP will also consider information regarding what the garment is considered to be in the trade and commerce of the United States and what the expectations of the ultimate purchaser are. See St. Eve International, Inc. v. United States, 11 CIT 224 (1987).

You present the following persuasive factors in support of classification of the pants and top at issue as underwear: (1) your company has been engaged in the sale and distribution of thermal underwear to ski and outdoor markets for thirty years; (2) you sell to ski, sporting goods, camping and outdoor stores throughout the United States; (3) the garments are only offered and sold as underwear; (4) the catalogs specifically indicate that they are to be used as underwear; (5) the garments are sold in your dealer's underwear departments; (6) your mail order customers feature your garments in the underwear section of their catalogs and; (6) the garments are used as a base layer (underwear) over which other clothing will be placed, and are seldom, if ever, worn by themselves.

We note that the Terramar catalog submitted described the fabric as "a multi-functioning performance base layer designed for very cold weather activities." In addition, the retail packaging materials state that the garments are "base layer" and "EC2® Qwik-Dri Thermal Regulated Technical Underwear". The word underwear is found in large lettering on the rear of the package in three prominent places.

As we stated above, generally underwear is not visible when worn, and a garment with a collar resembling a "turtleneck" worn under another garment would not be classified as underwear; however, it is our view that in the type of cold weather outdoor activities these garments are designed for, one would generally wear another high neck garment over it so that the neck of the Terramar pullover would not be visible.

In light of the specialized nature of these garments as a base layer worn for cold weather activities, the fact that Terramar is well-established as an intimate apparel retailer, and the considerable marketing and advertising data presented to substantiate your claim, CBP agrees that the principal use of Styles W6107 and W6097 is as underwear. Although no one feature or criterion is determinative, it is clear that the preponderance of the facts indicate that the articles at issue are men's underwear and should be classified accordingly.

HOLDING:

The garment, style W6097, is classified in subheading 6107.12.0010, HTSUSA, which provides for "Men’s or boys’ underpants, briefs, nightshirts, pajamas, bathrobes, dressing gowns and similar articles, knitted or crocheted: Underpants and briefs: Of man-made fibers: Men's." The applicable general column one rate of duty is 14.9 percent ad valorem and the textile quota category is 652.

The garment, style W6107, is classified in subheading 6109.90.1047, HTSUSA, which provides for "T-shirts, singlets, tank tops and similar garments, knitted or crocheted: Of other textile materials: Of man-made fibers: Men's or boys': Thermal undershirts." The applicable general column one rate of duty is 32 percent ad valorem and the textile quota category is 652.

The designated textile and apparel category may be subdivided into parts. If so, the 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 renegotiations and changes, to obtain the most current information available, we suggest you check, close to the time of shipment, the Textile Status Report for Absolute Quotas, which is available on the CBP Website at www.cbp.gov.

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

CBP office prior to importation of this merchandise to determine the current status of any import restraints or requirements.

Sincerely,


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