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HQ 966262




May 29, 2003

CLA-2 RR:CR:GC 966262AM

CATEGORY: CLASSIFICATION

TARIFF NO.: 6505.90.60

Mr. Danny Gabriel
Avon Products, Inc.
1251 Avenue of the Americas
New York, NY 10020

RE: Heated Head Therapy Wrap, #PP260709; Reconsideration of NY J80226

Dear Mr. Gabriel:

This is in reference to your letter, dated February 20, 2003, requesting reconsideration of New York Ruling Letter (NY) J80226, dated February 13, 2003, concerning the classification, under the Harmonized Tariff Schedule of the United States (HTSUS), of a heated head therapy wrap, #PP260709.

FACTS:

The heated head therapy wrap consists of a terry head cover or hood and plastic covered gel packs that can be heated in a microwave and placed inside specially shaped pockets in the terry cloth. The wearer then dons the hood for a soothing effect. The head wrap is constructed of knit 100% polyester terry fabric. You state that the article may be constructed of cotton terry fabric in the future. It has a crown with three panels, and is shaped to fit the head. There is a triangular piece of fabric in the back measuring approximately 14x18x18 inches with a velcro strip fastener at the end that is used to secure the wrap to the head. There are three removable gel packs inside the head cover. The gel packs are each composed of 72.9% distilled water, 25% propylene glycol, 1.5% HEC and .6% 2-phenoxyaethnol.

You request classification of the merchandise in subheading 3924.90.55, HTSUS, the provision for "[t]ableware, kitchenware, other household articles and toilet articles, of plastics: [o]ther: [o]ther."

ISSUE:

What is the classification, under the HTSUS, of merchandise composed of plastic, textile and chemical components, which is used to apply heat to the forehead?

LAW AND ANALYSIS:

Merchandise imported into the U.S. is classified under the HTSUS. Tariff classification is governed by the principles set forth in the General Rules of Interpretation (GRIs) and, in the absence of special language or context that requires otherwise, by the Additional U.S. Rules of Interpretation. The GRIs and the Additional U.S. Rules of Interpretation are part of the HTSUS and are to be considered statutory provisions of law.

GRI 1 requires that classification be determined first according to the terms of the headings of the tariff schedule and any related section or chapter notes and, unless otherwise required, according to the remaining GRIs taken in order. GRI 2(b) requires that goods consisting of different materials be classified according to the principles of GRI 3. GRI 3(a) requires that amongst competing headings, the most specific heading be used, but headings which refer to part only of the goods are equally specific. GRI 3(b) provides that composite goods consisting of different materials or made up of different components, shall be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable. GRI 6 requires that the classification of goods in the subheadings of a heading shall be determined according to the terms of those subheadings, any related subheading notes and mutatis mutandis, to the GRIs.

In interpreting 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 HTSUS. See T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989).

The following HTSUS headings are under consideration:

3824: Prepared binders for foundry molds or cores; chemical products and preparations of the chemical or allied industries (including those consisting of mixtures of natural products), not elsewhere specified or included:

3924: Tableware, kitchenware, other household articles and toilet articles, of plastics:

6505: 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 heated head therapy wrap consists partly of textile material, partly of plastic and partly of a chemical mixture. Thus it is described in GRI 2(b) as goods consisting of two or more materials. GRI 3(a) provides that such composite goods must be classified according to the principles of GRI 3(b) because each material comprising the composite good is described by equally specific tariff terms. Under GRI 3(b), classification of an article is to be determined on the basis of the component which gives the article its essential character. EN Rule 3(b)(VIII) lists as factors to help determine the essential character of such goods the nature of the materials or components, their bulk, quantity, weight or value, and the role of a constituent material in relation to the use of the goods.

Recently, there have been several court decisions on "essential character" for purposes of GRI 3(b). These cases have looked primarily to the role of the constituent materials or components in relation to the use of the goods to determine essential character. See, Better Home Plastics Corp. v. United States, 916 F. Supp. 1265 (CIT 1996), affirmed 119 F.3d 969 (Fed. Cir. 1997); Mita Copystar America, Inc. v. United States, 966 F. Supp. 1245 (CIT 1997), motion for rehearing and reconsideration denied, 994 F. Supp. 393 (CIT 1998), and Vista International Packaging Co., v. United States, 19 CIT 868, 890 F. Supp. 1095 (1995). See also, Pillowtex Corp. v. United States, 983 F. Supp. 188 (CIT 1997), affirmed CAFC No. 98-1227 (March 16, 1999). Based on the foregoing, we conclude that in an essential character analysis for purposes of GRI 3(b), the role of the constituent materials or components in relation to the use of the goods is generally of primary importance, but the other factors listed in EN Rule 3(b)(VIII) should also be considered, as applicable.

Before we can determine the essential character of the heated head therapy wrap, we must first determine the classification of the constituent materials or components. The chemical mixture which is inside the mask is itself a composite good. The chemical mixture is classified in heading 3824, HTSUS, as a residual product of the chemical or allied industries, not elsewhere specified or included. Heading 3924, HTSUS, provides for, among other things, household articles and toilet articles, of plastics. The terry covering shaped to conform to the contours of the head is classifiable as headgear in heading 6505, HTSUS. The EN to Chapter 65 states, in pertinent part, that it 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.).” EN 65.05 provides:

This heading covers hats and headgear (whether or not lined or trimmed) made directly by knitting or crocheting (whether or not fulled or felted), or made up from lace, felt or other textile fabric in the piece, whether or not the fabric has been oiled, waxed, rubberised or otherwise impregnated or coated.

It also includes hat-shapes made by sewing, but not hat-shapes or headgear made by sewing or otherwise assembling plaits or strips (heading 65.04).

The articles are classified here whether or not they have been lined or trimmed.

They include:

(1) Hats, whether or not trimmed with ribbons, hat pins, buckles, artificial flowers, foliage or fruit, feathers or other trimmings of any material.

Headgear of feathers or artificial flowers is excluded (heading 65.06).

(2) Berets (other than those made directly from felt plateaux - heading 65.03), bonnets, skull-caps and the like. These are usually made directly by knitting or crocheting, and are frequently fulled (e.g., basque berets).

(3) Certain oriental headgear (e.g., fezzes). These are usually made directly by knitting or crocheting, and are frequently fulled.

(4) Peaked caps of various kinds (uniform caps, etc.).

(5) Professional and ecclesiastical headgear (mitres, birettas, mortar-boards, etc.).

(6) Headgear made up from woven fabric, lace, net fabric, etc., such as chefs ’ hats, nuns ’ head-dresses, nurses ’ or waitresses ’ caps, etc., having clearly the character of headgear.

(7) Cork or pith helmets, covered with textile fabric.

(8) Sou ’westers.

(9) Hoods.

Detachable hoods for capes, cloaks, etc., presented with the garments to which they belong, are, however, excluded and are classified with the garments according to their constituent materials.

(10) Top hats and opera hats.

This heading also includes hair-nets, snoods and the like. These are of any material, generally of tulle or other net, knitted or crocheted fabric or of human hair.

In Headquarters ruling letters (HQs) 959825, dated May 19, 1999, 964061, dated March 7, 2001, 956845, dated December 22, 1994, 957182, dated March 6, 1995, 962310, dated April 3, 1999, and 962353, dated April 13, 1999, we classified similar articles in the heading for the component which retained the heat.

However, in a series of cases, we classified gel filled eye masks, used by heating or cooling and placed over the eyes for a relaxing effect, by the material that conformed to the wearer's head and eyes, in those cases, plastic. See HQs 964850, 964851 and 964852 dated April 18, 2001, HQs 963724, 963853 and 964877, dated May 17, 2001, and NY I81850, dated June 14, 2002. In HQ 964851, we stated, in pertinent part, the following:

The composite goods being classified are being imported to be used as eye masks. One of the key elements of an eye mask is its ability to conform to the contours of the wearer's face. In this case, the "indispensable function" (Better Home Plastics, supra) of the article is that it can be comfortably worn on ones face. The plastic shell which contains the chemicals provides the article with the flexibility necessary to enable the wearer to wrap the article around his or her face while simultaneously enjoying the benefits of the hot or cool contents. Without the plastic, the article could not function as designed.

Furthermore, in HQ 965180, April 1, 2002, we emphasized the broad definition of headgear, in various dictionaries as well as that evinced by the ENs, in finding that a cap and headband worn under a wig, used solely to secure the wig to the wearer's head, was classified as headgear in heading 6505, HTSUS.

The instant merchandise has a distinct hood shape meant only to be worn on the head. Therefore, it is recognizable as headgear under the broad common definition and definition in the ENs of that term. Like the wig cap and headband, that are always worn with a wig, the instant merchandise does not cease to be classifiable as headgear just because it is always worn with another article, such as the gel packs.

Furthermore, the heated head therapy is not a multi-purpose hot pack which could be placed on the knee as easily as it could be placed on the shoulder. Since the gel packs are usable only as inserts to the hood, the merchandise is unusable for its purpose except for the design of the fabric shell, which conforms to the contours of the wearer’s head. As in the eye mask cases, the essential character of the merchandise is imparted by the portion of the article that maintains the recognizable shape that makes it useable only on one distinct portion of the body. Hence, the essential character of the heated head therapy wrap is imparted by the textile headgear rather than by the plastic chemical packet. Accordingly, at GRI 3(b), we find that the heated head therapy wrap is described in heading 6505, HTSUS.

HOLDING:

At GRI 3(b), the polyester heated head therapy wrap, #PP260709, is classified in subheading 6505.90.6090 as “[h]ats 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: [o]ther: [o]f man-made fibers: [k]nitted or crocheted or made up from knitted or crocheted fabric: [n]ot in part of braid." If constructed of terry cotton fabric, the classification will be 6505.90.1540 as “[h]ats 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: [o]ther: [o]f cotton, flax or both: knitted." The man made fiber headgear falls under textile category designation 659. The cotton headgear is not subject to quota or visa requirement if made in China.

EFFECT ON OTHER RULINGS:

NY J80226 is affirmed.

Sincerely,

Myles B. Harmon, Director

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