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HQ 961943




June 22, 1998

CLA-2 RR:TC:TE 961943 SS

CATEGORY: CLASSIFICATION

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

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