CLA-2 CO:R:C:T 956753 GG
Mr. Earl A. Roberts
R.L. Jones Customhouse Brokers, Inc.
P.O. Box 472
Calexico, CA 92231
RE: Classification of cool down visors
Dear Mr. Roberts:
This is in response to your May 27, 1994 tariff
classification ruling request made on behalf of your client, Cool
Down Industries Inc. The merchandise at issue consists of cool
down ties, collars, wristbands, and visors. We understand that a
separate reply from the Area Director of Customs, New York
Seaport, has been issued concerning the classification of the
ties, collars and wristbands. Our analysis will focus solely on
the cool down visors.
FACTS:
The merchandise at issue consists of a plastic visor covered
with either a 100% cotton print woven fabric or a 65% cotton/35%
polyester solid woven fabric that extends into a headband with a
rear adjustable elastic strap. Within the headband of the visor
is a small quantity of polymer crystals which, when soaked in
water for 30 to 45 minutes, is said to expand up to 100 times in
size. In use, the water evaporates and the crystals become cold,
thus keeping the head of the wearer cool. The promotional label
accompanying the visor describes the visor as a "personal
evaporative cooler", and claims that the visor stays cool for 24
to 48 hours.
ISSUE:
What is the proper classification of the cool down visor?
LAW AND ANALYSIS:
Articles are classified under the Harmonized Tariff Schedule
of the United States (HTSUSA) in accordance with the General
Rules of Interpretation (GRI's). GRI 1 provides that articles
are classifiable according to the terms of the headings and any
relative section or chapter notes and, provided the headings or
notes do not otherwise require, according to the remaining GRIs
taken in order.
The headings in question are heading 3926, HTSUSA, which
provides for other articles of plastic and articles of other
materials of headings 3901 to 3914 under heading 3926, HTSUSA;
heading 6505, HTSUSA, which provides for hats and other headgear
of textile fabric; and heading 6506, HTSUSA, which provides for
other headgear.
Heading 3926, HTSUSA can be eliminated from consideration at
the outset. Although Customs has classified various textile
articles containing polymer crystals under this heading, on the
theory that the polymer crystals imparted the articles' essential
character (see Headquarters Ruling Letter (HRL) 954476, dated
October 1, 1993 ("Cool Snake"); HRL 955034, dated October 5, 1993
("Cool Body Bandana")), Note 2(m) of Chapter 39 states that the
chapter does not cover articles of section XII (for example,
footwear, headgear etc.). Cool down visors, as we shall discuss,
are headgear classifiable under section XII. Therefore, they
cannot be classified under heading 3926, HTSUSA.
Chapter 65 of Section XII of the HTSUSA covers headgear and
parts thereof. The Harmonized Commodity Description and Coding
System General Explanatory Note to Chapter 65 states in pertinent
part that "the Chapter covers ... hats and other headgear of all
kinds, irrespective of the materials of which they are made and
of their intended use (daily wear, theater, disguise, protection,
etc.)". Visors are headgear and are classified within this
chapter. See, e.g., HRL 088531, dated July 8, 1991; HRL 087539,
dated September 20, 1990.
The cool down visor is made from different materials:
fabric and plastics. The issue to be resolved is whether the
cool down visor is classifiable under heading 6505, HTSUSA as
textile headgear, or under heading 6506, HTSUSA, as other
headgear. In HRL 088531, cited above, it was determined that
textile covered plastic visors fall under heading 6505, HTSUSA
pursuant to GRI 1, unless the textile portion of the article is
de minimis, or else it is necessary to resort to GRI 3(b) and the
essential character is clearly and unequivocally imparted by some
other material.
Fabric envelops the entire plastic visor of the cool down
visor and extends upwards to form a headband. Therefore, the
textile portion of the cool down visor is not de minimis. The
issue of whether the polymer crystals give the cool down visor
its essential character must, however, be explored.
GRI 3(b) requires composite goods to be classified as if
they consisted of the material or component that imparts their
essential character. The factor which determines essential
character will vary as between different kinds of goods. It may,
for example, be determined by the nature of the material or
component, its bulk, quantity, weight or value, or by the role of
a constituent material in relation to the use of the goods. See
Explanatory Note VII, GRI 3. The fabric provides structure to
the visor and gives it aesthetic appeal. The polymer crystals,
on the other hand, give the visor its unique cooling quality.
This quality is emphasized in the marketing of the visors. It is
clear that each component serves an important purpose, making it
impossible to determine which one imparts the visor's essential
character. A similar conclusion was reached in HRL 950314, dated
November 8, 1991, in that neither the underlying textile
structure nor the covering sequins of a cap was found to confer
essential character. Since the fabric and the plastic portions
of the cool down visor are equally significant, GRI 3(c) applies
and the merchandise is classifiable based on the applicable
heading which appears last in the HTS.
HOLDING:
The cool down visor is classifiable in subheading
6506.91.0045, HTSUSA, under the provision for "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". It is dutiable at the rate of 2.4% ad
valorem and is not subject to a textile quota category.
Due to the changeable nature of the statistical annotation
(the ninth and tenth digits of the classification), you should
contact your local Customs office prior to importation of this
merchandise to determine the current status of any import
restraints or requirements.
Sincerely,
John Durant
Director, Commercial