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HQ 966899




May 20, 2004

CLA-2: RR:CR:TE: 966899 BtB

CATEGORY: CLASSIFICATION

TARIFF NO.: 6505.90.5090, HTSUSA

Ms. Camille Polimeni, Area Director
Bureau of Customs and Border Protection
John F. Kennedy International Airport
Building #77
Jamaica, NY 11430

RE: Internal Advice; Classification of a knit beret

Dear Ms. Polimeni:

This is in reply to your memorandum dated December 19, 2003, forwarding a request for internal advice dated October 17, 2003, from Stephen M. Zelman, Esq., on behalf of Fownes Brothers & Co., Inc. (“Fownes Brothers” or “requester”), on the classification, under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA), of a knit beret. A sample beret was forwarded to this office and will be returned to you under separate cover. Additional samples were also sent by the requester directly to our office and will be returned directly to the requester.

FACTS:

The submitted samples are adult berets constructed of knit 70% rayon, 30% acrylic fabric, and they are made in the Philippines. The berets have a rib knit cuff around the opening and within the tunnel of the rib knit is an elastic band covered with braided yarns. The hang-tags attached to the samples refer to them as Style: 8393. In its request for internal advice, the requester refers to the beret as style number 38393 and we will refer to the item in this ruling as a “beret” or “Style #38393.”

A quantity of the berets at issue were entered on August 20, 2003 at John F. Kennedy International Airport. The berets were entered under subheading 6505.90.5090, 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: Of man-made fibers: Knitted or crocheted or made up from knitted or crocheted fabric: Wholly or in part braid: Other: Other.” The berets were entered at the duty rate applicable to 6505.90.5090, under the 2003 HTSUSA, 6.8% ad valorem.

On October 2, 2003, the Bureau of Customs and Border Protection (CBP) at John F. Kennedy International Airport issued a Notice of Action (CF 29, now CBP29) to Fownes Brothers proposing to classify the berets under subheading 6505.90.6090, 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: Of man-made fibers: Knitted or crocheted or made up from knitted or crocheted fabric: Not in part of braid: Other: Other: Other.” The proposed duty rate applicable to subheading 6505.90.6090, HTSUSA, under the 2003 HTSUSA is 22¢/kg + 7.7% ad valorem.

ISSUE:

Whether the beret is classifiable under subheading 6505.90.50, HTSUSA, as wholly or in part braid, or subheading 6505.90.60, HTSUSA, as not in part braid.

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 are to be "determined according to the terms of the headings 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).

It is undisputed that the subject berets are classifiable under subheading 6505.90, which encompasses knit headgear. At the 8-digit level, we must determine whether the berets are classifiable as being "in part of braid." General Note (GN) 3(h)(v)(B) states “in part of” means “that the goods contain a significant quantity of the named material. With regard to the application of the quantitative concepts specified above, it is intended that the de minimis rule apply.” The de minimis rule states that an ingredient or component of an article may be ignored for classification purposes depending on "whether or not the amount used has really changed or affected the nature of the article and, of course, its salability." Varsity Watch Company v. United States, 34 CCPA 155, C.A.D. 359 (1947). As set forth in HQ 950792, dated March 31, 1992, CBP “has determined in application of the de minimis rule to ‘in part of braid’ that if the quantity of braid in the sample submitted served a useful purpose or affected the nature of the article or increased the salability of the article, it would be considered in part of braid.”

We have examined and tested each of the samples and find that the quantity of braid in the beret serves a useful purpose. Much like the braid in the beret that was the subject of NY A82685, dated May 15, 1996, we find that the braid in the instant beret adds to the elasticity of the rib knit cuff around the opening and helps to keep the beret securely on the wearer’s head. Sample berets with their braids intact provided the wearer with a perceptibly tighter and more secure fit than those that had their braids removed.

HOLDING:

The applicable classification for the subject beret is subheading 6505.90.5090, 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: Of man-made fibers: Knitted or crocheted or made up from knitted or crocheted fabric: Wholly or in part braid: Other: Other.”

The duty rate applicable to subheading 6505.90.5090, HTSUSA, under the 2003 and 2004 HTSUSA is 6.8% ad valorem. The textile quota category applicable to this provision is 659.

The designated textile and apparel categories 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 the importer check, close to the time of shipment, the Textile Status Report for Absolute Quotas, previously available on the Customs Electronic Bulletin Board (CEBB), which is available now on the CBP website at www.cbp.gov.

Due to the changeable nature of the statistical annotation (the ninth and tenth digits of the classification) and the restraint (quota/visa) categories, the importer should contact the local CBP office prior to importation of this merchandise to determine the current status of any import restraints or requirements.

You are to mail this decision to the internal advice applicant no later than 60 days from the date of this letter. On that date, the Office of Regulations and Rulings will make the decision available to Customs personnel, and to the public on the CBP Home Page on the World Wide

Web at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.

Sincerely,

Myles B. Harmon, Director
Commercial Rulings Division

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