Tariff Classification of a 60” Wrap Around Scarf/Hat

HQ H170178 August 5, 2011 CLA-2 OT:RR:CTF:TCM H170178TNA CATEGORY: Classification TARIFF NO.: 6505.90.60 Lorianne Aldinger, Senior Manager, Import Rite Aid Pharmacy P.O. Box 3165 Harrisburg, PA 17105 Re: Tariff Classification of a 60” Wrap Around Scarf/Hat Dear Ms. Aldinger: This is in response to your request on behalf of your client, Rite Aid Pharmacy (“Rite Aid”), submitted on April 27, 2011, to U.S. Customs and Border Protection (“CBP”), National Commodity Specialist Division, for a binding ruling on the tariff classification of a 60-inch wrap around scarf/hat under the Harmonized Tariff Schedule of the United States (HTSUS). Your ruling request, along with a sample, was forwarded to this office for a response. FACTS: The subject merchandise consists of a soft, red fabric hat that is in the shape of a cone. The red part of the merchandise is 60 inches long; it is designed to be both a hat and wrap around the user’s neck as a scarf. As a whole, the item’s intended use is as a hat or wrap around scarf. The scarf cannot be used without the hat. The hat portion has a five-inch white cuff around the wide part of the hat, and there is a three inch white pom-pom at the tip of the other end. The subject merchandise is being imported as part of Rite Aid’s Christmas Trim a Tree Program. A sample was received and examined by this office. ISSUE: Whether a red and white wrap around scarf/hat with a pom-pom should be classified in heading 6505, HTSUS, as a hat or other headgear, or in heading 9505, HTSUS, as a festive article? LAW AND ANALYSIS: Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that the classification of goods 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 the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs 2 through 6 may then be applied in order. The HTSUS headings under consideration are the following: 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: * * * * * * * * * * * * 9505 Festive, carnival or other entertainment articles, including magic tricks and practical joke articles; parts and accessories thereof: Legal Note 1 to Chapter 95, HTSUS, states, in pertinent part, the following: This chapter does not cover: … (v) Tableware, kitchenware, toilet articles, carpets and other textile floor coverings, apparel, bed linen, table linen, toilet linen, kitchen linen and similar articles having a utilitarian function (classified according to their constituent material). In understanding the language of the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System, which constitute the official interpretation of the HTSUS at the international level, 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 EN for heading 6505, HTSUS, states, in pertinent part, the following: 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… 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. The EN for heading 9505, HTSUS, states, in pertinent part, the following: This heading covers:   (A)  Festive, carnival or other entertainment articles, which in view of their intended use are generally made of nondurable material. They include:   (1)  Festive decorations used to decorate rooms, tables, etc. (such as garlands, lanterns, etc.); decorative articles for Christmas trees (tinsel, coloured balls, animals and other figures, etc); cake decorations which are traditionally associated with a particular festival (e.g., animals, flags).   (2)  Articles traditionally used at Christmas festivities, e.g., artificial Christmas trees, nativity scenes, nativity figures and animals, angels, Christmas crackers, Christmas stockings, imitation yule logs, Father Christmases.   (3)  Articles of fancy dress, e.g., masks, false ears and noses, wigs, false beards and moustaches (not being articles of postiche  heading 67.04), and paper hats. However, the heading excludes fancy dress of textile materials, of Chapter 61 or 62.   (4)  Throwballs of paper or cottonwool, paper streamers (carnival tape), cardboard trumpets, “blowouts”, confetti, carnival umbrellas, etc. The heading excludes statuettes, statues and the like of a kind used for decorating places of worship.    The heading also excludes articles that contain a festive design, decoration, emblem or motif and have a utilitarian function, e.g., tableware, kitchenware, toilet articles, carpets and other textile floor coverings, apparel, bed linen, table linen, toilet linen, kitchen linen. The subject merchandise consists of a hat, attached to a scarf, that is meant to be worn on the head and around the neck in cold weather. Its length gives it the appearance of a nightcap, the type of headgear worn to sleep. Even if a user wanted to wear the scarf portion, he could not wear the scarf without wearing the hat. As such, the subject merchandise is prima facie classifiable in heading 6505, HTSUS, which provides for, inter alia, hats and other headgear. Furthermore, CBP has defined the term “headgear” expansively. In HQ 965180, dated April 1, 2002, for example, CBP classified a textile lace cap and a textile lace headband used to secure a wig onto the head in heading 6505, HTSUS, other types of hats and other headgear. There, we cited lexicographic materials such as The Random House Dictionary of the English Language, which defined “headgear” as “any covering for the head, esp. a hat, cap, bonnet, etc.” We also cited to The Encyclopedia Americana, which defined the term “hat” as “a head covering that has a crown and a brim. Loosely, the term is used for many kinds of headgear.” See HQ 965180. There, the cap at issue satisfied the definition of “headgear” simply because it was a covering for the head. We further stated that “given the broad definition of headgear and the expansive language of the EN, the subject cap falls within the scope of Chapter 65, HTSUS.” See HQ 965180. This logic has been followed in subsequent rulings. See, e.g., HQ 966262, dated May 29, 2003. CBP has also previously classified wrap around scarf/hats in heading 6505, HTSUS. For example, in NY F80756, dated January 5, 2000, CBP classified a circular hat with an attached knit scarf that measured 48” in length in heading 6505, HTSUS. See NY F80756. In addition, in NY N102159, dated May 11, 2010, CBP classified a hat with an attached scarf that measured 20” in length as a hat of heading 6505, HTSUS. Our classification of the subject wrap around scarf/hat as a hat of heading 6505, HTSUS, is consistent with these rulings. We acknowledge that your ruling request calls the subject merchandise a Santa Claus hat, and that it is imported for use as part of Rite Aid’s “Trim a Tree” program. Furthermore, the merchandise’s red and white colors are reminiscent of a Santa Claus motif, which has been recognized as a festive motif. See, e.g., Midwest of Cannon Falls, Inc. v. United States, 20 Ct. Int’l Trade 123, 129-130 (1996), aff’d in part, rev’d in part, 122 F. 3d 1423 (Fed. Cir. 1997). Thus, we consider whether the subject wrap around scarf/hat can be considered a festive article. At 60 inches, it is much longer than a traditional Santa Claus hat, and is designed to be a scarf and hat, rather than simply a hat. Furthermore, the length detracts from its appearance as a pointy hat, which differentiates it from the types of red and white Santa hats that CBP has classified as festive articles of heading 9505, HTSUS. See, e.g., HQ H076796, dated December 17, 2009; HQ H095406, dated December 9, 2010. Lastly, the traditional conception of Santa Claus is of Santa Claus wearing a pointy hat that is only a hat. He is not traditionally drawn or photographed wearing a long scarf/hat combination. We therefore find that the subject wrap around scarf/hat can be distinguished from a traditional Santa hat. As such, the subject merchandise is not physically a Santa hat and is not used in the manner of a Santa hat because of the scarf. Furthermore, while the instant merchandise is imported during Christmas, this factor alone is not dispositive. CBP has consistently stated that neither the motif nor the sale of a good alone is sufficient to transform an item into a festive article.  See, e.g., HQ 958406 dated January 23, 1996; HQ 966215, dated February 23, 2003; HQ 964411, dated May 2, 2002; HQ H044635, dated February 18, 2009.  Moreover, while a Santa hat may only be used in a decorative sense, the additional scarf indicates a utilitarian use of keeping one’s neck and head warm, which precludes the scarf/hat from classification heading 9505, HTSUS. See Note 1(v) to Chapter 95. HOLDING: By operation of GRI 1, Rite Aid’s 60” Wrap Around Scarf/Hat is classified in heading 6505, HTSUS. It is specifically provided for in 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.” The column one, general rate of duty is 20¢/kg + 7% ad valorem. Duty rates are provided for your convenience and subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the World Wide Web at www.usitc.gov. A copy of this ruling letter should be attached to the entry documents filed at the time the goods are entered. If the documents have been filed without a copy, this ruling should be brought to the attention of the CBP officer handling the transaction. Sincerely, Ieva O’Rourke, Chief Tariff Classification and Marking Branch