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HQ 962742

February 28, 2001

CLA-2 RR:CR:TE 962742 RH


TARIFF NO.: 6501.00.6000

Port Director
U.S. Customs Service
1215 Royal Lane
DFW Airport
Dallas, TX 75261

RE: Protest No. 5501-98-100232; Western Hats; Men’s Hats; Unisex hats; Principle Use

Dear Sir:

This is in reply to your memorandum of April 5, 1999, concerning Application for Further Review of Protest (AFR) number 5501-98-100232.

The law firm of Aitken, Irvin, Lewin, Berlin, Vrooman & Cohn, LLP, timely filed the AFR on behalf of Milano Hat Company, Inc. The AFR challenges Customs classification of hat bodies under subheading 6501.00.6000 of the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). That provision provides for “Hat forms, hat bodies and hoods of felt, neither blocked to shape nor with made brims; plateaux and manchons (including slit manchons) of felt: Other.


The protestant is a manufacturer of western hats and imports its hat bodies from FEPSA, a supplier in Portugal. Between May 20, 1997 and June 8, 1998, the protestant filed twenty-one entries for the importation of fur felt hat bodies used to make western hats, commonly known in the United States as cowboy hats.

Upon entry, the protestant classified the merchandise under subheading 6501.00.3000, HTSUSA, as men’s and boys’ hat bodies. Following importation, Customs issued two Requests for Information (Customs Form 28) on February 5, 1998, and March 5, 1998, asking the protestant to provide a copy of the purchase order, confirmation and proof of payment for one of the entries under protest, and asked the protestant if the hat bodies were “men’s or boys’” or if they were unisex. The office manager for Milano Hat Company, Inc., returned the form and replied by underlining the word “unisex.”

We note counsel’s statement that the answer on the CF 28 was in error as it was not given from an owner, importer or Corporate/Company officer.

After receiving this information, Customs issued Notices of Action on September 16, 17 and 18, informing the protestant that the hat bodies would be classified as other hat forms, hat bodies and hoods of felt, under subheading 6501.00.6000, which would result in a rate advance. Customs liquidated all of the entries in September 1998.

The protestant maintains that the imported hat bodies should have been classified under subheading 6501.00.3000, HTSUSA, as men's and boys'.


Are the fur felt hat bodies which will be made into western/cowboy hats classifiable as men’s or boys’ under subheading 6501.00.3000, HTSUSA, or as "other" under subheading 6501.00.6000, HTSUSA?


Classification of goods under the HTSUSA is governed by the General Rules of Interpretation (GRIs). GRI 1 provides that classification shall be determined according to the terms of the headings and any relative section or chapter notes.

Additionally, the Explanatory Notes (EN’s) to the Harmonized Commodity Description and Coding System constitute the official interpretation of the nomenclature at the international level. The EN’s are not legally binding. However, they do represent the considered views of classification experts of the Harmonized System Committee. It has, therefore, been the practice of the Customs Service to follow, whenever possible, the terms of the EN’s when interpreting the HTSUSA.

Counsel cites Note 9, Chapter 61, HTSUSA, Note 9, Chapter 61, reads:

Garrments of this chapter designed for left over right closure at the front shall be regarded as men's or boys' garments, and those designed for right over left closure at the front as women's or girls' garments. These provisions do not apply where the cut of the garment clearly indicates that it is designed for one or other of the sexes.

Garments which cannot be identified as either men's or boys' garments or as women's or girls' garments are to be classified in the headings covering women's or girls' garments. and several New York rulings which set out the rule that garments which are not exclusively for use by men or boys’ are unisex and classifiable in tariff provisions for “women’s or girls’” items. In a footnote, counsel notes that hat bodies are not included within Chapter 61, but argues that the distinctions between men’s and women’s items draws heavily from the treatment of items under Chapter 61 and chapter 62.

We find this argument untenable. Unlike the legal notes to Chapters 61 and 62, HTSUSA, Chapter 65 has no similar notes that specify a protocol for determining the classification of headgear based on gender. Chapter notes are statutory provisions. In determining the scope of a statute, we look first to its language. If the statutory language is unambiguous, in the absence of a "clearly expressed intent to the contrary, the language must ordinarily be regarded as conclusive." Consumer Product Safety Commission v. GTE Sylvania, Inc., 447 U.S. 102, 108 (1980). Thus, the omission of a legal note in Chapter 65, which appears elsewhere in the tariff, establishes intent to treat the provisions differently.

However, we agree with counsel that in this case we can look to marketing and adverting to determine if the hat bodies are men’s or boys’. Additional U.S. Rule of Interpretation 1(a), HTSUSA, provides that in the absence of context to the contrary, a tariff classification controlled by use, other than actual use, is to be determined by the principal use in the United States at, or immediately prior to, the date of importation, of goods of the same class or kind of merchandise.

In E.C. Lineiro v. United States, 37 CCPA 10, CAD 411 (1949), the court states that “a designation by use may be established, although the word ‘use’ or ‘used’ does not appear in the language of the statute.” As such, it is the use of the class or kind of merchandise to which the imported article belongs, which must be determined, not the “alleged” use of the instant merchandise.

Although the introduction of the HTSUSA changed the concept of use from chief use to principal use (chief use requiring that the use exceed all other uses combined, and principal use requiring that the use exceed each other use), it is still informative to see how courts interpreted the former statute since the wording regarding class or kind is nearly identical. In United States v. Colibri Lighters (USA), Inc., 47 CCPA 106, CAD 739 (1960), in discussing the concept of chief use the Appeals Court stated that in addition to the characteristics of the merchandise itself, classification should be based on the chief use of the articles of that class generally and not on the basis to which the individual articles should be put. In Pistorino & Co., Inc. v. Untied States, 67 CCPA 1, CAD 1234 (1979), the court therein also observed that what has to be determined is the chief use of the class of kind of merchandise.

Further support comes from United States v. The Carborundum Company, 63 CCPA 98, CAD 1172 (1976), in which, in determining whether merchandise is encompassed by a particular class or kind of merchandise, the court considered the general physical characteristics of the merchandise, the channel of trade, and the economic practicality of the “use” of the imported merchandise.

Based on this precedent, then, we must look to the principal use of hat bodies for western hats, irrespective of whether the importer actually markets them exclusively for use by males. In that regard, the protestant’s argument that the imported hats bodies are not unisex but are distinctly men’s and are displayed and sold as men’s western hats is not conclusive, as we must look at the principal use in the United States of the same class or kind of merchandise.

The protestant’s exhibit 1 includes advertising material stating that its Larry Mahan®

Larry Mahan was the Professional Rodeo Cowboy’s Association (PRCA) World Champion All-Around Cowboy from 1966 to 1970. felt hats are available in 3”, 3¼’’, 3½’, 3¾’’ and 4’’ brims and are available in sizes 6½” through 7¾”. The advertising depicts men wearing the hats in various rodeo events including saddle-bronc riding, bareback-bronc riding and bull riding. No women are depicted in the advertising materials supplied by the protestant, although we note that women also participate in these rodeo events in, for example, the Women’s Professional Rodeo Association (WPRA).

Additionally, the protestant submitted a letter from its vendor, FEPSA. It reads, in relevant part:

[T]he fur felt bodies that we supply to you are for making western hats only and can never be used for millinery. We have never heard any or our customers in the USA complain of such problems and misunderstandings. The specifications are very different and can not be mistaken one for another, as shown below and as average:

Westerners (Men) Millenery (Ladies)
Weight 220 g. 90 to 140 g.
Dimension of crown 5 ¾ in. 4 ¼ in.
Thickness of body as thick as possible as thin as possible Hardness of body very hard very soft
Stiffening - Crown 0.8 °Bé none
- Brim 4.8 x 2 °Bé (very stiff) 0.5 °Bé (very soft) Surfacing finishing deep pouncing mostly velour

Based on the information from its foreign supplier, the protestant argues that the sizing, construction and styling of the “Westerner” hat bodies indicate that they are exclusively for use in the manufacture of men’s hats and that they cannot be used for the manufacture of women’s or unisex hats.

We agree with counsel that the imported hat bodies are not “Millinery.” That term is defined in “A Dictionary of Costume and Fashion," 1985, 1957 by Mary Brooks Picken, as follows “Hats, bonnets, and headdresses of all types worn by women."

The fact that the imported hat bodies are not "millinery" does not mean that they are “men’s.” Western hats do not have mutually exclusive characteristics depending on whether they are worn by the male or female sexes. Western hats for both men and women have special design requirements, including extra stiffening, hardness and strength to withstand the rigors of work around livestock. Moreover, we find that Milano hats are not distinguishable from other cowboy hats in their sizing, quality, construction or styling.

In Eiseman-Ludmar Co., Inc. v. United States, 2 Ct. Intl. Trade 40 (1981), the plaintiff imported fur felts in rectangular shapes approximating 18” by 45” which were sold to domestic hat manufacturers for their use in the manufacture of army officer hats. The question in that case was whether the imported merchandise was under the inferior heading to heading 703.35 of the Tariff Schedule of the United States (TSUS), the predecessor to the HTSUSA. Item 703.35 provided for headwear including bodies, forms, plateaux, manchons, and shapes for headwear “for men or boys”.

In that case, the record established that the merchandise conformed to the specifications required by the United States Army relating to materials used in Army officer’s hats and was sold only to military hat manufacturers in the United States.

The court relied on evidence form an “old timer in the trade” who referred to the historical use of “manchons” in the manufacture of ladies’ headwear, stating:

This article, which is felted in a similar way to ordinary fur felt hoods or capelines, was formerly used extensively in the manufacture of ladies’ headwear. Generally the article was cut into a flat piece and then using the article like a piece of cloth, patterns would be cut and stitched together to make a hat. In this way it was used differently from a fur felt hood or capeline where the entire hat was usually blocked in one piece and only then cut to accommodate a particular shape.

The court found that the evidence showed that the slit manchons could be and were used in the manufacture of ladies hats. Moreover, the court noted that the “fact that the plaintiff imported their merchandise in question only for sale to domestic companies in their manufacture of U.S. Army Officer hats could not serve to bring the imported merchandise within the limiting provisions of plaintiff’s claimed classification that the hats were “for men or boys.”

Although the Eiseman-Ludmar case was decided under the TSUS, the principals are still applicable. In a “concordance” by the International Trade Commission (ITC), addressing a heading by heading cross-reference of TSUS and HTSUS counterparts, item 703.3500 was converted to heading 6501.00.0030, HTSUSA.

Thus, as evidenced by Additional U.S. Rule of Interpretation 1(a), HTSUSA, and the rationale in Eiseman-Ludmar, Customs must look at the principal use in the United States of the imported hat bodies to determine classification.

Our research reveals that western hats are not specifically targeted to men or boys, but that the principal use in the United States of Western or Cowboy hats is unisex. We looked in numerous magazines depicting both men and women wearing Western hats including Equis, Western Horseman, Horse Illustrated, American Cowboy and America’s Barrel Racer. Clearly, western hats are commonly worn by female country and western singers and performers, equestrians, and women who simple like to wear western-styling apparel.

Moreover, we contacted several associations that regulate equine sports events for western style riding. Every association contacted has an official rulebook, which includes a section listing the mandatory dress code for participation in the various equine events. All of the associations allow both male and female
participates except for the WPRA, which only allows female participants. Each organization lists “cowboy hat” or “western hat” as part of the mandatory attire. See WPRA Rule Book, page 75, section12.2; American Horse Show Association Official Handbook of Rules and Regulations, page 135, section 445(a); National Barrel Horse Association Rules & Regulations, Section F; National Little Britches Rodeo Association Official Rule Book, page 52, Article I (A); American Horse Show Association Rulebook, Article 3904(2).

Additionally, the Customs import special for this commodity in Dallas, Texas also researched the marketing, advertising and construction of western hats. She visited eight western stores that sell western hats and apparel. Sales personnel unanimously said that there are no differences between western hats sold to men and those sold to women.

Accordingly, we find that the imported hat bodies are unisex articles properly classified under subheading 6501.00.6000, HTSUSA, as “other” hat forms and hat bodies.


The protest should be DENIED in full. The imported hat bodies manufactured into Milano western hats are classifiable under subheading 6501.00.6000, HTSUSA, which provides for “Hat forms, hat bodies and hoods of felt, neither blocked to shape nor with made brims; plateaux and manchons (including slit manchons) of felt: Other.”

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 must be accomplished prior to mailing the decision.

Sixty days from the date of the 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.ustreas.gov, by means of the Freedom of Information Act, and other methods of public distribution.


John Durant, Director
Commercial Rulings Division

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