OT:RR:CTF:FTM H244589 GaK
Port Director
Port of New York/Newark
U.S. Customs and Border Protection
1100 Raymond Boulevard Suite 402
Newark, NJ 07102
Attn: Jennifer Tagliaferro, Supervisory Entry Specialist
Re: Application for Further Review of Protest No. 4601-13-100760; Classification of headbands
Dear Port Director:
This is in reference to the Application for Further Review (“AFR”) of Protest No. 4601-13-100760, timely filed on May 28, 2013, by Abady Law Firm, P.C., on behalf of Almar Sales Co. (“Almar” or “Protestant”). The AFR concerns the tariff classification of headbands under the Harmonized Tariff Schedule of the United States (“HTSUS”).
FACTS:
This AFR concerns the tariff classification of headbands entered in two entries on August 13, 2011, and January 24, 2012. Both entries were liquidated on November 30, 2012. The headbands were entered under subheading 5609.00.40, HTSUS, which provides for “[a]rticles of yarn, strip or the like of heading 5404 or 5405, twine, cordage, rope or cables, not elsewhere specified or included: Other” and was liquidated under subheading 6217.10.85, HTSUS, which provides for “[o]ther made up clothing accessories; parts of garments or of clothing accessories, other than those of heading 6212: Accessories: Other: Headbands, ponytail holders and similar articles.”
The Protestant describes the headbands as follows:
The subject merchandise is known as headbands. The following item numbers and their specific descriptions are provided below:
Item #EX748/8K (black), #EX748/8FS (neon), #EX748/8P (pastel), is a package of eight clasp free headbands. Each headwrap is constructed of a core of synthetic rubber band sheathed in a braided polyester yarn joined together by a piece of satin polyester ribbon wrapped around the headwrap.
Item #EXW1027/6B is a package of six clasp free headbands. Each headwrap is constructed of a core of synthetic rubber band sheathed in a braided metalized polyester yarn. Three of those six headbands bear screen-printed images of butterflies or peace symbols.
Item #HT 5013 is a package of five headbands. Two of the five headbands are each constructed of a core of synthetic rubber band sheathed in a braided polyester yarn joined together by a metal clip. The other three headbands are each constructed of a core of synthetic rubber band sheathed in braided metalized and non-metalized polyester yarn joined together by a metal clip. Further, glued to each of these three headbands are four flowers with polyester petals and in the center of the flower a plastic rhinestone.
The Protestant asserts that the headbands should be classified under subheading 5609.00.40, HTSUS. Samples of the headbands were submitted to CBP for verification. CBP has found that the headbands are composed of a 6.35 mm wide rubber strip sheathed with braided flat textile fabric.
ISSUE:
Whether the headbands are classified under heading 5609, HTSUS, as “[a]rticles of yarn, strip or the like of heading 5404 or 5405, twine, cordage, rope or cables, not elsewhere specified or included” or heading 6217, HTSUS, as “[o]ther made up clothing accessories; parts of garments or of clothing accessories, other than those of heading 6212”?
LAW AND ANALYSIS:
Initially, we note that the matter protested is protestable under 19 U.S.C. § 1514(a)(2) as a decision on classification. The protest was timely filed, within 180 days of liquidation for entries made on or after November 30, 2012. (Miscellaneous Trade and Technical Corrections Act of 2004, Pub. L. 108-429, § 2103(2)(B)(ii), (iii) (codified as amended at 19 U.S.C. § 1514(c)(3) (2006)).
Further Review of Protest No. 4601-13-100760 is properly accorded to Protestant pursuant to 19 C.F.R. § 174.24(a) because the decision against which the protest was filed is alleged to be inconsistent with certain CBP rulings. Namely, the Protestant cites to several rulings which classify headbands with rubber cores in heading 5609, HTSUS. See e.g., New York Ruling Letter (“NY”) N127858, dated October 20, 2010; NY N037416, dated September 16, 2008; NY G85011, dated January 18, 2001, NY A89673, dated December 18, 1996; NY H87807, dated March 6, 2002; and, NY N028058, dated May 20, 2008.
Classification under the 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 GRIs may then be applied.
GRI 3(b) and (c) provides as follows:
When, by application of rule 2(b) or for any other reason, goods are, prima facie, classifiable under two or more headings, classification shall be effected as follows:
…
(b) Mixtures, composite goods consisting of different materials or made up of different components, and goods put up in sets for retail sale, which cannot be classified by reference to 3(a), shall be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable.
(c) When goods cannot be classified by reference to 3(a) or 3(b), they shall be classified under the heading which occurs last in numerical order among those which equally merit consideration.
The 2011 and 2012 HTSUS headings under consideration are as follows:
4008 Plates, sheets, strip, rods and profile shapes, of vulcanized rubber other than hard rubber:
* * *
4015 Articles of apparel and clothing accessories (including gloves, mittens and mitts), for all purposes, of vulcanized rubber other than hard rubber:
* * *
5604 Rubber thread and cord, textile covered; textile yarn, and strip and the like of heading 5404 and 5405, impregnated, coated, covered or sheathed with rubber or plastics:
* * *
5609 Articles of yarn, strip or the like of heading 5404 or 5405, twine, cordage, rope or cables, not elsewhere specified or included:
* * *
6217 Other made up clothing accessories; parts of garments or of clothing accessories, other than those of heading 6212:
Note 7 to Chapter 40 states as follows:
Thread wholly of vulcanized rubber, of which any cross-sectional dimension exceeds 5 mm, is to be classified as strip, rods or profile shapes, of heading 4008.
In understanding the language of the HTSUS, the Explanatory Notes (“ENs”) of the Harmonized Commodity Description and Coding System may be utilized. The ENs, although not dispositive or legally binding, provide a commentary on the scope of each heading, and are generally indicative of the proper interpretation of the Harmonized System at the international level. See T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989).
The ENs to heading 40.08 state, in pertinent part, as follows:
Plates, sheets and strip of cellular rubber combined with textile fabric on both faces, whatever the nature of the fabric, are excluded from this heading (heading 56.02, 56.03 or 59.06). [emphasis in original]
* * *
The headbands at issue are each constructed with a rubber band that is 6.35 mm wide. In accordance with Note 7 to Chapter 40, HTSUS, the rubber band in the subject headbands would be considered a rubber strip, not a rubber cord. In addition, the rubber strip is combined with braided polyester yarn, and therefore excluded from heading 4008. See ENs to heading 40.08.
The Protestant argues that the headbands are classified in heading 5609, HTSUS. For support, the Protestant cites to the following cases: NY N127858, dated October 20, 2010; NY N037416, dated September 16, 2008; NY G85011, dated January 18, 2001; NY A89673, dated December 18, 1996; NY H87807, dated March 6, 2002; and NY N028058, dated May 20, 2008. All of the merchandise in those rulings contained cordage of subheading 5604.10, HTSUS, which provides for “Rubber thread and cord, textile covered; textile yarn, and strip and the like of heading 5404 and 5405, impregnated, coated, covered or sheathed with rubber or plastics: Rubber thread and cord, textile covered (201).” A made up article of cordage is classifiable in heading 5609, HTSUS, which provides for “Articles of yarn, strip or the like of heading 5404 or 5405, twine, cordage, rope or cables, not elsewhere specified or included.”
The instant merchandise does not consist of rubber thread or cord covered with textile. Rather, it consists of rubber strip because it exceeds 5 mm in width. See Note 7 to Chapter 40. The rubber strip is covered with a braided textile fabric. Heading 5609, HTSUS, does not cover articles of rubber strip which are covered with fabric; it only includes rubber thread or cord which is covered with fabric. Therefore, the instant merchandise cannot be classified in heading 5609, HTSUS.
No single heading covers the instant merchandise in its entirety. As the instant merchandise consists of rubber and braided polyester, it is a composite good. The article of rubber strip is prima facie classifiable in heading 4015, as a clothing accessory (headband) of rubber. The braided fabric is prima facie classifiable as a clothing accessory (headband) of woven fabric under heading 6217, HTSUS. See “Tariff Classification of Headbands and Similar Articles,” Treasury Decision (T.D.) 96-24, 30 Cust. B. 126 (1996).
Therefore, we must apply GRI 3(b) to classify the headbands. According to GRI 3(b), a composite good is classified according to the component which imparts the good’s essential character. In order to identify a composite good’s essential character, the U.S. Court of International Trade (“CIT”) has applied the factors listed in EN VIII to GRI 3(b) which are “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.” The Home Depot v. United States, 427 F. Supp. 2d 1278, 1293 (Ct. Int’l Trade 2006). With regard to the component which imparts the essential character, the CIT has stated that it is “that which is indispensable to the structure, core or condition of the article, i.e. what it is.” Id. citing A.N. Deringer, Inc. v. United States, 66 Cust. Ct. 378, 383 (1971).
The headbands consist of rubber strip and braided polyester. The rubber strip provides the structure and elasticity of the headbands, allowing the headbands to stretch and stay on the wearer’s head. However, without the textile component, the uncovered rubber strip would snag the hair and pull out strands of hair each time it was worn on the head and removed. While the textile component also provides the headbands’ function of ornamenting the wearer’s head with color and design, the headbands would not be able to remain on the wearer’s head without the rubber strip component. Moreover, there was no information provided on the cost, value, and weight of the textile and rubber materials. Accordingly, we find that there is no basis to apply GRI 3(b) in this case.
Therefore, we must apply GRI 3(c) to classify the headbands. As previously stated, if consisting solely of the rubber strip, the article is classified under heading 4015, HTSUS. If consisting solely of the textile component, the article is classified under heading 6217, HTSUS. As such, the headbands are classified under heading 6217, HTSUS, specifically, subheading 6217.10.85, HTSUS, which provides for “[o]ther made up clothing accessories; parts of garments or of clothing accessories, other than those of heading 6212: Accessories: Other: Headbands, ponytail holders and similar articles.”
HOLDING:
By application of GRI 1 and GRI 3(c), the subject headbands are classified under subheading 6217.10.85, HTSUS, which provides for “[o]ther made up clothing accessories; parts of garments or of clothing accessories, other than those of heading 6212: Accessories: Other: Headbands, ponytail holders and similar articles.” The 2011 and 2012 column one, general rate of duty is 14.6% ad valorem.
You are instructed to DENY the protest. In accordance with Sections IV and VI of the CBP Protest/Petition Processing Handbook (HB 3500-08A, December 2007, pp. 24 and 26), you are to mail this decision, together with the CBP 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 Trade, Regulations and Rulings, will make the decision available to CBP personnel, and to the public on the CBP website at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division