CLA-2 RR:CR:TE 962744 jb
John M. Peterson, Esq.
Maria E. Celis, Esq.
Neville, Peterson & Williams
80 Broad Street, 34th Floor
New York, NY 10004
RE: Request for modification/revocation of HQ 961943; baby shampoo/sun visor
Dear Mr. Peterson and Ms. Celis:
This is in response to your letter, dated March 22, 1999, on behalf of your client, Kel-Gar Inc., requesting the immediate modification or revocation of Headquarters Ruling Letter (HQ) 961943, dated June 22, 1998, regarding the classification under the Harmonized Tariff Schedule of the United States (HTSUS) for certain baby shampoo/sun visors. Samples were submitted to this office for examination.
FACTS:
The merchandise at issue consists of certain infant shampoo/sun visors which are constructed of neoprene rubber, to which a thin layer of 100 percent nylon knit fabric has been bonded. The visor is a machine cut flat oblong piece of synthetic rubber with an oval hole. It is designed to fit over a baby’s head during a bath to prevent soap or shampoo from running into the baby’s eyes, or for protection from the sun’s ultraviolet rays during exposure to sunlight. The material of which the visor is composed weighs less than 1,500 per square meter.
In HQ 961943 the classification of certain baby shampoo/sun visors was determined to be under heading 6505, HTSUS, as hats and other headgear, made up of knitted fabric. You state that this classification is in error and that the proper classification for this merchandise is in heading 6506, HTSUS, as other headgear of rubber or plastics, providing no covering for the crown of the head. In support of your claim you state that the determination in HQ 961943 rested entirely on the definition set forth in Note 4(d) to chapter 59, HTSUS, as it existed prior to 1996. As this statutory provision was repealed several years before HQ 961943 was issued, the classification determination rendered in HQ 961943 cannot stand. Further, you state that as that provision now reads, the instant merchandise is precluded from classification in heading 6505, HTSUS, and is instead classified in heading 6506, HTSUS.
ISSUE:
What is the proper classification of the merchandise at issue?
LAW AND ANALYSIS:
Classification of merchandise under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) is in accordance with the General Rules of Interpretation (GRI). GRI 1 requires that classification be determined according to the terms of the headings and any relative section or chapter notes. Where goods cannot be classified solely on the basis of GRI 1, the remaining GRI will be applied, in the order of their appearance.
Chapter Note 4(d) to chapter 59, as cited in HQ 961943, reads as follows:
For the purposes of heading 5906, the expression "rubberized textile fabrics” means:
Plates, sheets or strip, of cellular rubber, combined with textile fabric where the textile fabric is present for more than mere reinforcement.
You are correct in bringing to our attention the fact that the statutory language stated above was repealed several years before that ruling was issued. As you point out in your letter, the new language no longer has a provision “(d)”, but does include the following language which ends note 4:
This heading does not, however, apply to plates, sheets or strip of cellular rubber, combined with textile fabric, where the textile fabric is present merely for reinforcing purposes (chapter 40), or textile products of heading 5811.
As such, the wording of the former note 4(d) includes rubber combined with textile fabric in heading 5906, HTSUS, in the case where the textile fabric is present for more than mere reinforcement purposes, and the present note excludes rubber combined with textile fabric where the textile fabric is merely for reinforcement purposes. Although worded differently, these notes come to the same conclusion. That is, where the textile fabric which is combined with the rubber has a purpose which is “more than mere reinforcement”, the merchandise is still properly classified as a rubberized textile fabric in heading 5906, HTSUS.
Additionally, as the fabric from which this merchandise is constructed weighs less than 1,500 grams per square meter, it falls within the language set forth in Note 4(a)(i) to chapter 59, HTSUS, which states:
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
Thus, classification under heading 6505, HTSUS, the heading specifically covering textile headgear, would be appropriate.
In the case of the subject merchandise, HQ 961943, correctly stated that:
It is Customs position that the knit nylon fabric is present for more than mere reinforcement. ...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 the 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.”
As we concur with the classification determination rendered in HQ 961943, and believe the current version of Note 4, chapter 59, and the version in effect prior to 1996, although worded differently commands the same result, we view the error in application of Note 4(d), chapter 59, as harmless and we see no basis to revoke the determination rendered.
HOLDING:
The subject merchandise was correctly classified in subheading 6505.90.6030, HTSUSA, which 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: other: of man-made fibers: knitted or crocheted or made up from knitted or crocheted fabric: not in part of braid: for babies. The applicable column one general rate of duty is 29.8 cents/kg + 10.6 percent ad valorem, and the quota category is 239.
The designated textile and apparel category may be subdivided into parts. If so, 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 negotiations and changes, we suggest that your client check, close to the time of shipment, the Status Report On Current Import Quotas (Restraint Levels), an issuance of the U.S. Customs Service, which is updated weekly and is available at the local Customs office.
Due to the changeable nature of the statistical annotation (the ninth and tenth digits of the classification) and the restraint (quota/visa) categories, your client should contact the local Customs office prior to importing the merchandise to determine the current status of any import restraints or requirements.
Sincerely,
John Durant, Director
Commercial Rulings Division