CLA-2 RR:TC:TE 961943 SS
TARIFF NOS.: 6505.90.6030
Port Director
U.S. Customs Service
1205 Royal Lane
DFW Airport, Texas 75261
Re: Protest No. 5501-98-100026, baby shampoo/sun visors; subheading
6505.90.6030
Dear Sir:
This is in response to the Application for Further Review of
Protest Number 5501-98-100026 filed by the importer, Kel-Gar, Inc.
("Protestant"), contesting the classification of baby shampoo/sun
visors, the detention of the shipment on April 14, 1998, issuance
of a Notice to Redeliver a prior shipment entered on April 2, 1998,
and issuance of three Customs Form 29s reclassifying shipments
entered on January 13, 1998, February 9, 1998, and March 3, 1998,
which you forwarded to our office for review on June 8, 1998. The
Protestant also submitted a letter and two (2) samples of the
product in support of its Application for Further Review which were
also forwarded to our office for review on June 8, 1998.
This Application for Further Review of Protest was timely filed and
is proper pursuant to Part 174 of the Customs Regulations (19 CFR
Part 174).
FACTS:
The articles under protest are baby shampoo/sun visors entered into
the United States in 1998, under five (5) separate entries. The
Protestant filed five entries in 1998, in which it classified the
baby shampoo/sun visors under subheading 6506.91.0045 of the
Harmonized Tariff Schedule of the United States (HTSUS)("Other
headgear, whether or not lined or trimmed: Other: Of rubber or
plastics: Visors, or other headgear which provides no covering for
the crown of the head").
The product is a flat oblong piece of synthetic rubber with an oval
hole. A thin knitted nylon fabric is laminated onto one surface of
the rubber. The fabric includes the printed character of "BARNEY".
The visor is designed, marketed and sold to serve two functions:
when used in the bath, the visor protects a baby's eyes while the
baby's hair is being shampooed; when used outdoors, the visor
protects a baby's eyes and face from the sun. The visor's rubber
surface prevents slippage on the head and provides a soft but
secure seal to prevent shampoo or sun from coming into contact with
the baby's eyes and face.
Based on a review of the merchandise, Customs determined that the
product should have been classified under subheading 6505.90.6030
HTSUS ("Hats and other headgear, knitted or crocheted, or made up
from lace, felt or other textile fabric, in the piece (but not in
strips), whether or not lined or trimmed; hair-nets of any
material, whether or not lined or trimmed: Other: Of man-made
fibers: knitted or crocheted or made up from knitted or crocheted
fabric: Not in part of braid: For babies"). Entries under
6505.90.6030 HTSUS require a textile visa under category 239. On
April 13, 1998, Customs detained a shipment of 2,838 dozen visors
imported by Protestant based on the belief that a textile visa was
required and issued a Notice of Detention. On April 23, 1998,
Customs issued a Notice to Redeliver requiring Protestant to
redeliver a shipment of 5,800 visors which had been entered by Kel-Gar on April 2, 1998. On May 7, 1998, Customs issued three CF 29s
notifying Kel-Gar of a reclassification and rate advance concerning
its entries of January 13, 1998, February 9, 1998 and March 3,
1998.
ISSUE:
Whether the baby shampoo/sun visors under protest should be
classified under HTSUS 6505.90.6030 (textile headgear) or HTSUS
6506.91.0045 (other headgear)?
LAW AND ANALYSIS
Classification of goods under the HTSUS 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. In the event
that the goods cannot be classified solely on the basis of GRI 1,
and if the headings or notes do not otherwise require, the
remaining GRIs may be applied, taken in order. Heading 6505
provides for "Hats and other headgear, knitted or crocheted, or
made up from lace, felt or other textile fabric, in the piece (but
not in strips), whether or not lined or trimmed; hair-nets of any
material, whether or not lined or trimmed". Heading 6506 provides
for "Other headgear, whether or not lined or trimmed".
The visors are a combination of rubber and textile. Protestant
states the visors are constructed of 100% nylon knit fabric
laminated onto a layer of synthetic rubber that is 100% styrene
butadiene. The Explanatory Notes to the Harmonized Commodity
Description and Coding System ("ENs") to Chapter 40 ("Rubber and
Articles Thereof") state that the classification of rubber and
textile combinations is essentially governed by Note 1 (ij) to
Section XI, Note 3 to Chapter 56 and Note 4 to Chapter 59. The ENs
constitute the official interpretation of the scope and content of
the nomenclature at the international level. While not treated as
dispositive, the ENs are to be given considerable weight in Customs
interpretation of the HTSUS.
Section XI covers "Textiles and Textile Articles". Note 1 (ij) to
Section XI, states that the section does not cover knitted fabrics
laminated with rubber or articles thereof, of Chapter 40. Since
the visor is an article of knitted fabric laminated with rubber,
classification in Section XI is precluded.
Chapter 56 covers nonwovens and articles thereof. Note 3 to
Chapter 56 states that the chapter does not cover nonwovens
laminated with rubber. Since the visor is a nonwoven laminated
with rubber, classification in Chapter 56 is precluded.
Chapter 59 covers laminated textile fabrics. Note 4 to Chapter 59
HTSUS, provides in pertinent part:
For the purposes of heading 5906, the expression "rubberized
textile fabrics" means:
(a) Textile fabrics impregnated, coated, covered or
laminated with rubber:
(I) Weighing not more than 1,500 g/m2; or
(ii) Weighing more than 1,500 g/m2 and containing
more than 50% by weight of textile material;
* * *
(d) Plates, sheets or strip, of cellular rubber,
combined with textile fabric where the textile fabric is
present for more than mere reinforcement.
It is Customs position that the knit nylon fabric is present for
more than mere reinforcement. See Headquarter Ruling Letter (HRL)
083452, dated September 8, 1989. The textile fabric provides a
protective cover for the rubber. The textile fabric gives the
visor a different visual appearance and tactile quality, and
enhances the marketability of the product. The fabric also serves
as an absorbent base to take the ink for a clear imprint of
"BARNEY". Although a design could be imprinted on the rubber
itself, the visual effect would be different and would lack the
durability of the imprint on fabric. Therefore, the nylon
synthetic rubber material is considered a "rubberized textile
fabric" classifiable in heading 5906 HTSUS. Articles made of this
material would be considered to be articles of textiles. See HRL
557216, dated August 19, 1993, and HRL 956484, dated August 19,
1994. Thus classification under Heading 6505 HTSUS, the heading
specifically covering textile headgear, would be appropriate.
Furthermore, the Explanatory Note for 65.05 states that the heading
covers hats and headgear made up from lace, felt or other textile
fabric in the piece, whether or not the fabric has been oiled,
waxed, rubberized or other wise impregnated or coated. Explanatory
Note for 65.06 merely states that the heading covers headgear not
classified in preceding headings of the chapter. Although the EN
for 65.06 states that the heading covers headgear of rubber or
plastic and lists bathing caps as an example, the visors at issue
are not simply rubber headgear but rather headgear made of
rubberized textile fabric. Accordingly, Heading 6505 HTSUS
specifically covers the visor. It is Customs position that the
visors are classified by GRI 1 under 6505.
Thus, Protestant's arguments under the remaining GRI are
inapplicable. The visors are not classified, prima facie, in two
or more headings that are equally applicable. Therefore, there is
no need to apply other GRI's lower in the hierarchy for
classification purposes. Additionally, the visors are not
composite goods; they are to be considered "rubberized textile
fabric" under Heading 5906 HTSUS. Therefore, the essential
character of the visor is not an issue. Accordingly,
classification by GRI 1 under Heading 6505 HTSUS, the heading
specifically covering textile headgear, is appropriate.
HOLDING:
In the instant protest, the baby shampoo/sun visors were properly
re-classified. Accordingly, the protest should be denied in whole.
In accordance with section #A(11)(b) of Customs Directive Number
099 3550-065, dated August 4, 1993, Subject: Revised Protest
Directive, this decision should be attached to the Customs form 19,
Notice of Action, and furnished to the Protestant no later than 60
days from the date of this letter. Any reliquidation of the entry
in accordance with the decision must be accomplished prior to
mailing of the decision. Sixty days from the date of the decision
(On that date) the Office of Regulations and Rulings will take
steps to make the decision available to Customs personnel via the
Customs Ruling Module in ACS and to the public via Diskette
Subscription Service, Freedom of Information Act, and other public
access channels.
Protestant has requested confidential treatment of confidential
business information alleging that disclosure of information
contained in the letter in support of the Protest and Application
for Further Review would prejudice its competitive position.
Customs notes that no confidential business information is
contained in this ruling. Furthermore, Protestant's submission
does not adequately identify the reasons why such information
should not be disclosed, including the reasons the disclosure would
harm Protestant's client's competitive position. Accordingly, the
request is denied. However, if this office receives a Freedom of
Information Act request for Protestant's submission, Treasury
Department Regulation (31 CFR 1.6) regarding the disclosure of
business information provides that the submitter of business
information will be advised of receipt of a request for such
information whenever the business submitter has in good faith
designated the information as commercially or financially sensitive
information. We accept the request included in the submission as
a good faith request. Accordingly, Protestant will be notified if
a disclosure request is received. At that time Protestant may
submit justification for withholding and arguments in support
thereof.
Sincerely,
John Durant, Director
Commercial Rulings Division