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HQ 965180




April 1, 2002

CLA-2 RR:CR:TE 965180 ttd

CATEGORY: CLASSIFICATION

TARIFF NO: 6505.90.6045; 6505.90.6090

Mr. Ricky Villena
H.L.M. Cargo Clearance Brokers, Inc.
P.O. Box 652623
Miami, Florida 33265-2623

RE: Reconsideration of New York Ruling Letter B82405, dated March 24, 1997.

Dear Mr. Villena:

This letter concerns New York Ruling Letter (NY) B82405, dated March 24, 1997, regarding the classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) of a textile lace cap and a textile lace headband. After review of that ruling, Customs has determined that the classification of the textile lace cap and headband in subheading 6117.80.9540, HTSUSA, was incorrect. For the reasons that follow, this ruling revokes NY B82405.

Pursuant to section 625(c)(1) Tariff Act of 1930 (19 U.S.C. 1625(c)(1)) as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act (Pub. L. 103-82, 107 Stat. 2057, 2186), notice of the proposed revocation of NYRL H81076 was published on February 13, 2002, in the Customs Bulletin, Volume 36, Number 7. As explained in the notice, the period within which to submit comments on this proposal was until March 15, 2002. No comments were received in response to this notice.

FACTS:

In NY B82405, Customs classified the merchandise at issue in heading 6117, HTSUSA, as clothing accessories. The subject articles were described as a textile lace cap and a textile lace headband. Both articles are of a knit construction made from 90 percent polyester and 10 percent lycra. It is stated that these items will be used by the general public and cancer patients without hair to secure a wig onto the head. Each item features hook and loop tape on the outer surface to which the wig will be attached, and hook and eye closures at the rear that allow the items to be sized for the head.

ISSUE:

Whether the merchandise should be classified under heading 6117, HTSUSA, as clothing accessories; heading 6507, HTSUSA, as head-bands and linings and part linings; heading 6505, HTSUSA, as other headgear; or heading 6307, HTSUSA, as other made up textile articles.

LAW AND ANALYSIS:

Classification under the HTSUSA is made in accordance with the General Rules of Interpretation (GRI). GRI 1 provides, in part, that classification decisions 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 goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRI may then be applied.

The Harmonized Commodity Description and Coding System Explanatory Notes (EN) constitute the official interpretation of the Harmonized System at the international level (for the 4 digit headings and the 6 digit subheadings) and facilitate classification under the HTSUSA by offering guidance in understanding the scope of the headings and GRI. While neither legally binding nor dispositive of classification issues, the EN provide commentary on the scope of each heading of the HTSUSA and are generally indicative of the proper interpretation of the headings. See T.D. 89-80, 54 Fed. Reg. 35127-28 (Aug. 23, 1989).

One of the four possible headings in which the subject merchandise may be classified is heading 6117, HTSUSA, which provides for "other made up clothing accessories, knitted or crocheted; knitted or crocheted parts of garments or of clothing accessories." Neither "clothing" nor "accessory" is defined in the tariff schedule or EN. In Headquarters Ruling Letter (HQ) 961167, dated November 28, 2000, Customs found that "clothing" is synonymous with the terms "apparel" and "garment," meaning " . . . articles which cover the trunk of the body." Moreover, Mary Brooks Picken's, The Fashion Dictionary (page 1) defines "accessory" as an article of apparel that completes the costume such as shoes, gloves, hats, bags, jewelry, neckwear, belts, boutonnieres, scarves. Merriam-Webster's Collegiate Dictionary Online, (2001), defines "accessory" as a thing of secondary or subordinate importance or an object or device not essential in itself but adding to the beauty, convenience, or effectiveness of something else. In HQ 088540, dated June 3, 1991, Customs defined "accessory" as an article that is related to the primary article, and intended for use solely or principally with a specific article.

In HQ 084857, dated June 28, 1989, and HQ 081945, dated January 29, 1990, Customs ruled that accessories to shoes are not considered clothing accessories of heading 6217, HTSUSA. HQ 084857 stated in pertinent part:

[I]n order to be classifiable under Heading 6217, an article must be a clothing accessory. In our view, shoes are commonly considered to be apparel accessories and not "clothing", and, while shoe covers may be considered to be shoe accessories, accessories of clothing accessories are not within the purview of Heading 6217.

This line of reasoning also extends to "clothing accessories" of heading 6117, HTSUSA. See HQ 963531, dated June 1, 2000; and HQ 963535, dated June 1, 2000. Therefore, in heading 6117, HTSUSA, accessories classifiable under this provision will be related to clothing, intended for use with clothing and of secondary importance to clothing. HQ 950470, dated January 7, 1992.

Applying these principles to the textile cap and headband under consideration, Customs concludes that these items are not "used solely or principally as an accessory to clothing." The subject cap and headband are both accessories; however, they are not accessories to clothing but rather accessories to a wig. Each item is intended to be worn under a wig, serving as a wig liner, which adds to a wig's effectiveness by improving its comfort and fit. Moreover, each item is intended for use solely or principally with a wig as the primary article. Neither the subject cap nor headband is intended to be worn absent a wig, which is indicated by the fastener tapes visible on their outer surfaces to which a wig attaches. However, as a wig itself is not an article of clothing (a wig of human hair, animal hair or textile materials is classifiable under heading 6704, HTSUSA), the subject cap and headband are accessories for an item that is not an article of clothing. Therefore, the subject items are not properly classifiable as accessories to clothing under heading 6117, HTSUSA.

Customs has previously ruled that textile headbands, ponytail holders and similar articles are properly classifiable as other clothing accessories of heading 6117 and 6217, HTSUSA. See T.D. 96-24, 61 Fed. Reg. 10841 (Mar. 15, 1996). However, the subject headband is different than those considered in T.D. 96-24, which reads in pertinent part:

Textile headbands and ponytail holders accent or otherwise complete one's costume. In addition, these articles can be decorative and add to the beauty of one's costume or function to hold the hair in place and add to the effectiveness of one's costume. We believe textile headbands and ponytail holders meet the definition of accessory.

Accordingly, in T.D. 96-24, Customs determined that generally textile headbands meet the definition of "clothing accessories." The textile headbands considered in T.D. 96-24 were items which accented or otherwise completed one's costume. The headbands were visible when worn and either decorative, adding to the beauty of one's costume, or functional, adding to the effectiveness of one's costume by holding the hair in place.

The subject headband is not the type of headband contemplated by T.D. 96-24 as a clothing accessory under heading 6117, HTSUSA. The subject headband functions to secure a wig to the head and make it fit more comfortably. It is designed to be worn under a wig and therefore, is not intended to be visible or decorative when used as intended. In contrast, the headbands described in T.D. 96-24 were plainly visible when worn and adorned an outfit either decoratively by its own appearance or functionally by holding one's hair in place. Therefore, while heading 6117, HTSUSA, is the appropriate heading for most textile headbands, it does not apply to the instant textile headband.

Chapter 65, HTSUSA, provides for among other things, headgear and parts thereof. While a general EN exclusion to Chapter 65 states that Chapter 65 does not include inter alia wigs and the like of heading 6704, HTSUSA, the subject wig accessories are not precluded from being classifiable in Chapter 65. The subject cap and headband are potentially classifiable under two provisions in Chapter 65, HTSUSA, as headbands and linings under heading 6507, HTSUSA, and as hats and other headgear under heading 6505, HTSUSA.

Heading 6507, HTSUSA, includes "headbands, linings, covers, hat foundations, hat frames, peaks (visors) and chinstraps for headgear." The EN to heading 6507 lists specific fittings for headgear and states that only those items listed are covered by the heading. The EN lists headbands and linings and part linings, which are described as follows:

(1) Head-bands for fitting on the edge of the crown. These are usually of leather, but may also be of composition leather, of oiled cloth or other coated fabric, etc. They are classified in this heading only when cut to length or otherwise ready for incorporation in the headgear. They frequently bear an inscription of the hat-maker's name, etc.

(2) Linings and part linings normally made of textile material but sometimes of plastics, leather, etc. These also usually bear a printed indication of the hat-maker's name, etc.

According to the EN, the headbands, linings and part linings cited in heading 6507, HTSUSA, are components used in the construction of headgear.

The exemplar head-bands in the EN of heading 6507 represent items that are used in making hats or headgear. In contrast, the subject cap and headband are not specific fittings for headgear but rather completed articles, not incorporated into articles of headgear. Therefore, the subject articles are not ejusdem generis or “of the same kind” of merchandise as the exemplars cited in the EN to 6507, HTSUSA. Accordingly, neither the subject cap nor headband are properly classifiable under heading 6507, HTSUSA.

Heading 6505, HTSUSA, 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." The EN to heading 6505, HTSUSA, provide that the range of headgear embraced by the heading includes hats made up from textile fabric, berets, skull-caps, fezzes, peaked caps, mortar-boards, nurses' headcaps, nuns' headdresses, pith helmets, sou'westers, hoods, and top hats. The EN to heading 6505, HTSUSA, also state that the heading includes hair-nets, snoods, and the like, of any material. Moreover, the broad language of the EN state that Chapter 65 covers "other headgear of all kinds, irrespective of the materials of which they are made and of their intended use (daily wear, theatre, disguise, protection, etc.)."

The Random House Dictionary of the English Language, the Unabridged Edition (1983) defines "headgear" as "any covering for the head, esp. a hat, cap, bonnet, etc." The Encyclopedia Americana (International Edition 1980) describes the term "hat" as follows:

HAT, strictly, a head covering that has a crown and a brim. Loosely, the term is used for many kinds of headgear. Since earliest times, men have created a great range of headgear, from fitted caps to draped or wrapped veils, turbans and bands. Almost every kind of material has been used - fur, fabric, metal, straw, horns, jewels, feathers, flowers, lace, glass and synthetic materials.

The subject cap satisfies the definition of "headgear" as it is a covering for the head. Though not specifically referenced in the EN, the subject cap is headgear within the intended scope of Chapter 65. Further, the cap under consideration is similar to several of the exemplars cited in the EN to heading 6505, namely skull-caps, hair-nets, snoods and the like. The subject cap is brimless and fits the head snugly like a skull-cap, swim cap, hair-net, or knit cap. See NY G86364, dated February 12, 2001 (tie hat similar to a skull-cap classified under heading); NY D88490, dated March 31, 1999 (child's swim cap classified under heading 6505); NY D85956, dated January 6, 1999 (hairnet classified under heading 6505); and NY B87125 (knit hat classified under heading 6505). Similar to the subject cap, skull-caps and other small caps may be worn under other headgear articles, such as helmets and turbans. See NY G86364 (cited above). Given the broad definition of headgear and the expansive language of the EN, the subject cap falls within the scope of Chapter 65, HTSUSA, and is properly classifiable under heading 6505, HTSUSA.

Among multiple examples of headgear, Mary Brooks Picken's, The Fashion Dictionary (3rd ed. 1973), provides for an open-crown hat, a "hat with complete brim and partial crown, the center being left open so that hair shows through." Picken's at 180. Similarly, turbans include an open-crown version. Picken's at 184. In HQ 962450, dated August 23, 1999, Customs ruled that a "u" shaped sun visor made of neoprene material is properly classifiable as headgear in heading 6505, HTSUSA. Also, in NY G86364, Customs classified a removable headband shaped hat liner that is worn under a hard hat as a specific fitting for headgear in heading 6507, HTSUSA.

The headband at issue functions the same as the subject cap; it is worn under a wig to secure the wig and make it fit more comfortably. Moreover, identical to the cap under consideration, the subject headband is headgear within the intended scope of Chapter 65, HTSUSA. The instant headband encircles the head without covering the crown of the head in the same manner as the sun visor in HQ 962450, the removable headband shaped hat liner in NY G86364, and the open-crowned examples cited above in The Fashion Dictionary. Just like the headband shaped hat liner in NY G86364, the subject headband is not intended to be worn without another article nor visible when worn. Moreover, unlike a sweatband, the subject headband does not absorb perspiration, nor is its principal purpose to hold hair in place like a sweatband worn on the head. While the instant headband is not a specific fitting for headgear like the hat liner in NY G86364, it is itself an article of headgear. Based on the broad definition of headgear and language of the EN, combined with the similarities of the subject headband to other hats and headgear articles, the headband at issue is also properly classifiable under heading 6505, HTSUSA.

Heading 6307, HTSUSA, provides for other made up articles of textile materials. The EN to heading 6307 state that the heading covers made up articles of any textile material which are not included more specifically elsewhere in the tariff schedule. The textile cap and headband under consideration are more specifically provided for in heading 6505, HTSUSA. As such, the subject articles are not properly classifiable under heading 6307, HTSUSA.

As the subject cap and headband are each made of 90 percent polyester and 10 percent lycra and are of knit construction, they are both classifiable under subheading 6505.90.60, HTSUSA, which provides "Hats and other headgear, knitted or crocheted Other: Of man-made fibers: Knitted or crocheted or made up from knitted or crocheted fabric: Not in part of braid."

HOLDING:

Based on the foregoing, the subject textile headband is classified in subheading 6505.90.6045, HTSUSA, the provision for "Hats and other headgear, knitted or crocheted Other: Of man-made fibers: Knitted or crocheted or made up from knitted or crocheted fabric: Not in part of braid Other: Other: Visors, and other headgear which provides no covering for the crown of the head." The subject textile cap is classified in subheading 6505.90.6090, HTSUSA, the provision for "Hats and other headgear, knitted or crocheted Other: Of man-made fibers: Knitted or crocheted or made up from knitted or crocheted fabric: Not in part of braid Other: Other: Other." The duty rate for each item will be 23.9 cents per kilogram plus 8.4% ad valorem. Both the cap and headband fall within textile category designation 659.

NYRL B82405, dated March 24, 1997, is hereby REVOKED. In accordance with 19 U.S.C. §1625(c), this ruling will become effective 60 days after its publication in the Customs Bulletin.

The designated textile and apparel category may be subdivided into parts. If so, the 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 renegotiations and changes, to obtain the most current information available, we suggest you check, close to the time of shipment, the Status Report On Current Import Quotas (Restraint Levels), an internal issuance of the U.S. Customs Service which is updated weekly and is available for inspection at your local Customs office. The Status Report on Current Import Quotas (Restraint Levels) is also available on the Customs Electronic Bulletin Board (CEBB) which can be found on the U.S. Customs Service Website at www.customs.gov.

Due to the changeable nature of the statistical annotation (the ninth and tenth digits of the classification) and the restraint (quota/visa) categories, 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 Rulings Division

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