HQ W968280 - Internal Advice; Classification of the Original Buff® - United States International Trade Commision Rulings

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August 15, 2007

HQ W968280

CLA-2 OT:RR:CTF:TCM W968280 HMC

CATEGORY: CLASSIFICATION

TARIFF NO.: 6505.90.6090

Port Director
U.S. Customs and Border Protection
P.O. Box 17423
Washington, DC 20041

ATTN: Import Specialist Division

RE: Internal Advice; Classification of the Original Buff®

Dear Port Director:

This is in response to your memorandum, dated June 2, 2006, forwarding a request for internal advice, dated February 17, 2006, and letter, dated January 12, 2006, both submitted by the law offices of Stein, Shostak, Shostak, Pollack & Ohara, LL, on behalf of Original Buff, S.L. (hereinafter referred to as “the requester”), concerning the classification under the Harmonized Tariff Schedule of the United States (“HTSUS”), of the Original Buff.® A sample was submitted with the request for internal advice.

FACTS:

The sample submitted is the Original Buff® (“Buff”) that is made from a tubular 100% knit polyester microfiber fabric that measures approximately 50 centimeters in length and 25 centimeters in width when lying flat. The display card that holds the merchandise indicates that the Buff is designed to quickly wick, absorb and evaporate moisture, and that the microfiber from which it is made is breathable and wind resistant, and performs as an insulator that keeps the wearer warm in the winter and cool in the summer. The display card also describes the Buff as a seamless article, slightly stretchy for custom fit, which makes the merchandise comfortable head and neck wear. The card further identifies the Buff as multi-functional headwear, designed for multi-sport use and illustrates 12 ways to wear it. The 12 ways to wear the Buff are referred to as the “neckerchief,” “headband,” “blind chicken,” “wristband,” “mask,” “hairband,” “balaclava,” “scarf,” “scrunchy,” “sahariane,” “cap” and the “pirate.” The sample provided is a grey colored Buff with a printed pattern of black flowers and leaves. The display card is in the shape of a human head and shoulders and the Buff is marketed wrapped around the “shoulder” of the card, as shown in the pictures of the item below:

In the January 12, 2006 letter, counsel for the requester explains that in 2005, the United States distributor of the Buff, Buff USA, LLC, entered the Buff under subheading 6505.90.6090, HTSUS, as other headgear, of man-made fibers, knitted or crocheted or made up from knitted or crocheted fabric, not in part of braid. Subsequently, CBP issued a Notice of Proposed Action, dated September 1, 2005, in which CBP proposed to reclassify the Buff under subheading 6117.80.9540, HTSUS, as other made up clothing accessories, knitted or crocheted. However, counsel states that CBP has recently proposed to reclassify the Buff under subheading 6003.30.60, HTSUS, as other knitted fabric, of synthetic fibers. Counsel for the requester contends that the Buff is classifiable under subheading 6505.90.6090, HTSUS.

ISSUE:

Whether the Buff is classifiable as other headgear under subheading 6505.90.60, HTSUS, as other made up clothing accessories under subheading 6117.80.95, HTSUS, or as other knitted or crocheted fabric under subheading 6003.30.60, HTSUS.

LAW AND ANALYSIS:

Merchandise is classifiable under the HTSUS, in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides, in part, that for legal purposes, classification shall be determined according to the terms of the headings and any relative section or chapter notes, and provided the headings or notes do not require otherwise, according to GRIs 2 through 6.

The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System. While not legally binding on the contracting parties, and therefore not dispositive, the ENs provide a commentary on the scope of each heading of the Harmonized System and are thus useful in ascertaining the classification of merchandise under the System. CBP believes the ENs should always be consulted. See T.D. 8980, 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).

The HTSUS subheadings under consideration for the Buff are as follows:

6003 Knitted or crocheted fabrics of a width not exceeding 30 cm, other than those of heading 6001 or 6002: 6003.30 Of synthetic fibers:
6003.30.60 Other.

6117 Other made up clothing accessories, knitted or crocheted; knitted or crocheted parts of garments or of clothing accessories: Other accessories:
Other:
6117.80.95 Other.

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: Other:
Other:
Of man-made fibers:
Knitted or crocheted or made up from knitted or crocheted fabric: 6505.90.60 Not in part of braid.

Counsel for the requester contends that the Buff is classifiable, applying GRI 1, as other headgear under subheading 6505.90.6090, HTSUS, on the premise that the Buff is a hood that is styled almost identically to the merchandise considered in Headquarters Ruling Letter (“HQ”) 087177, dated October 2, 1990, in which CBP determined that a ladies “funnel” article was a hood and thus headgear of heading 6505, HTSUS. Alternatively, counsel argues that should CBP not be able to discern the essential character of the Buff, applying GRI 3(c), the merchandise should still be classified in heading 6505, HTSUS. To support its GRI 3(c) argument, counsel cites New York Ruling Letter (“NY”) K86452, dated June 8, 2004, NY K83753, dated April 7, 2004, and NY 838399, dated April 10, 1989.

The merchandise considered in HQ 087177 is described in that ruling as a knit tubular article of headwear, known in the trade as a ladies “funnel,” approximately 25 inches in length, made of 100 percent acrylic, and with a ribbed knit opening at one end. The ruling further states that:

It is designed to be worn over the head and neck by gathering it together and pulling it over the head until one’s face is exposed at the ribbed knit end. The full head and neck coverage provides warmth and protection against the elements, and as such, functions much like a hood. Although the garment, when worn is significantly full at the nape of the neck, the excess material does not cover the shoulders or back in the manner of a scarf or shawl.

CBP, applying GRI 1, classified the merchandise in heading 6505, HTSUS. Citing EN 65.05 and a dictionary definition of the term “hood,” CBP found that because the merchandise served in the same manner as a detachable hood, the “funnel” was substantially similar to headgear described in heading 6505, HTSUS. We disagree with counsel’s contention that the subject Buff is almost identical to the funnel article at issue in HQ 087177. As stated in the sample display card submitted, the Buff does not have a finished ribbed end like the merchandise considered in HQ 087177. Therefore, it is our view that the subject merchandise is distinguishable from the merchandise considered in HQ 087177.

Furthermore, we disagree with counsel’s alternative argument that the subject merchandise should be classified in heading 6505, HTSUS, pursuant to GRI 3(c). Note 1(o) to Section XI, HTSUS, provides that Section XI does not cover hairnets or other headgear or parts thereof of Chapter 65. Thus, if an article were described by heading 6505, HTSUS, it would be classifiable in that heading in accordance to GRI 1. Also, the articles considered in two of the cases cited by counsel are distinguishable from the subject merchandise. In NY K86452, dated June 8, 2004, CBP considered a protective sleeve that could also be worn as headwear or around an athlete’s neck for protection or comfort. CBP classified the protective sleeve pursuant to GRI 3(c) because neither the headwear features nor the sleeve features, which included a notched, cuffed opening at the upper end of the sleeve with a hook and loop system, imparted the essential character to the article. The Buff, being considered in this case does not have the features of the merchandise considered in NY K86452. Also, the articles considered in NY 838399, dated April 10, 1989, are distinguishable from the Buff because that case involved three styles of caps, which are completely different from the subject merchandise. Moreover, contrary to counsel’s contention, CBP in NY 838399 did not apply GRI 3(c) to the merchandise considered in that ruling which counsel seeks to compare with the Buff. We nevertheless find that the subject merchandise is described by heading 6505, HTSUS.

The General EN to Chapter 65, states that:

With the exception of the articles listed below this Chapter covers hat-shapes, hat-forms, hat bodies and hoods, and hats and 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.).

It also covers hair-nets of any material and certain specified fittings for headgear.

The hats and other headgear of this Chapter may incorporate trimmings of various kinds and of any material, including trimmings made of the materials of Chapter 71.

This Chapter does not include :

(a) Headgear for animals (heading 42.01). (b) Shawls, scarves, mantillas, veils and the like (heading 61.17 or 62.14). (c) Headgear showing signs of appreciable wear and presented in bulk, bales, sacks or similar bulk packings (heading 63.09). (d) Wigs and the like (heading 67.04).
(e) Asbestos headgear (heading 68.12).
(f) Dolls’ hats, other toy hats or carnival articles (Chapter 95). (g) Various articles used as hat trimmings (buckles, clasps, badges, feathers, artificial flowers, etc.) when not incorporated in headgear (appropriate headings).

The term “headgear” is not defined in the section or chapter notes of the HTSUS, or in the ENs. CBP has nevertheless relied on dictionary definitions to determine whether merchandise is headgear. A tariff term that is not defined in the text of the HTSUS or the ENs is construed in accordance with its common and commercial meaning. Nippon Kogaku (USA )Inc. v. United States, 69 CCPA 89, 673 F.2d 380 (1982). Common and commercial meaning may be determined by consulting dictionaries, lexicons, scientific authorities and other reliable sources. C.J. Tower & Sons v. United States, 69 CCPA 128, 673 F.2d 1268 (1982). In particular CBP has cited the definition provided in The Random House Dictionary of the English Language, Unabridged Edition (1983), which defines the term “headgear” as “any covering for the head, esp. a hat, cap, bonnet, etc.” See, e.g., HQ 085390, dated December 14, 1989, and HQ 966541, dated September 9, 2003. Applying the above definition of the term “headgear” to this case, we find that the Buff falls within the above-cited definition of “headgear” as it is specifically designed for wearing on the head. Also, the Buff is marketed as headgear with multiple uses, the majority of which would be to cover the head. We further find that inasmuch as the language of General EN to Chapter 65, HTSUS, includes headgears of all kinds and the merchandise is not like any of the specific exceptions cited therein, the Buff is described by heading 6505, HTSUS. This conclusion is supported by NY K83753, dated April 7, 2004, cited by counsel.

The merchandise considered in NY K83753 is the Headcase,™ which is described in that ruling as a cylinder shaped item that measures approximately 9 x 17 inches, made of 100% polyester microfiber and without seams. It does appear that the Headcase™ is substantially similar to the Buff. While the legal reasoning applied in NY K83753 appears to be incorrect, See supra, note 1. we agree with its conclusion and find that, like the Headcase™ considered in NY K83753, the Buff is described by heading 6505, HTSUS. Because Note 1(o) to Section XI, HTSUS, excludes articles of Chapter 65, the subject merchandise is not classifiable in headings 6117 or 6003, HTSUS. Accordingly, the subject merchandise is classifiable under subheading 6505.90.60, HTSUS, 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: Other: Other: Of man-made fibers: Knitted or crocheted or made up from knitted or crocheted fabric: Not in part of braid.” We note that the country of origin marking “Made in the EU” on the back side of the card that holds the Buff for sale does not satisfy the country of origin requirements at 19 CFR Part 134. See HQ 734820, dated April 21, 1994, and HQ 734667, dated June 16, 1992, which hold that the marking “EU” is not an acceptable marking designation because the “EU” is not recognized as a country.

HOLDING:

By application of GRI 1, the Buff is classifiable in heading 6505, HTSUS. It is specifically classifiable under subheading 6505.90.60, HTSUS, 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: Other: Other: Of man-made fibers: Knitted or crocheted or made up from knitted or crocheted fabric: Not in part of braid” with a column one general duty rate of 20 cents per kilogram plus 7% ad valorem. Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the Internet at www.usitc.gov/tata/hts/.

Sincerely,

Myles B. Harmon, Director

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