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HQ 956753


November 1, 1994

CLA-2 CO:R:C:T 956753 GG

CATEGORY: CLASSIFICATION

TARIFF NO.: 6506.91.0045

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

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