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HQ 960517

June 5, 1998

CLA-2 RR:TC:TE 960517 SG


TARIFF NO: 6117.80.9540 and 6117.90.9090

C.R. Hammett, Traffic Manager
Wells Lamont
6640 West Touhy Avenue
Niles, IL 60714-4587

RE: Reconsideration-Classification and Country of Origin, Earmuff: NY B84282 of April 30, 1997

Dear Mr. Hammett:

This is a response to your company's request of June 11, 1997, for reconsideration of NY ruling B84282, dated April 30, 1997, which was issued in response to correspondence dated April 7, 1997, requesting a binding ruling for the tariff classification and country of origin of certain knit "eargear". By correspondence of April 17, 1997, additional information was provided. By letter dated February 24, 1998, you advised that it is no longer your company's intention to manufacture the product in Taiwan.

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. 103-182, 107 Stat. 2057, 2186 (1993), notice of the proposed modification of NY B84282 was published on April 8, 1998, in the Customs Bulletin, Volume 32, Number 14.


The subject merchandise as imported consists of a knit fabric component of synthetic fiber which has been cut to shape and is approximately 14 inches in length. We are advised that the fabric is made in Taiwan. The material will be cut to shape and exported to China where it will be embroidered with a National Football League Logo on the ear area (stage 1). The cut components will be shipped to the United States. It will then be sewn, formed, insulated, and a 4 piece plastic frame, which will be made of U.S. materials, inserted, resulting in a finished article. The article will also be packaged in the U.S.

The completed article resembles a textile covered headband with an earmuff at each end. It will be worn with the "headband" like portion on top of the wearer's head so that the "muff" portions can cover the ears; thus, you state that it is not a earmuff.

Samples of the merchandise as imported and of the finished product were provided.

You seek to have the cut pieces classified as parts of headgear (heading 6505) as the sewing, forming, insulating and packaging will be done in the U.S . You also desire to label the finished product labeled as "country of origin U.S.A.

New York Customs, in B84282, dated April 30, 1997, advised that the knit component of Taiwan origin, cut to shape (stage 1) and imported into the United States where it will be assembled into an "eargear was classifiable under subheading 6117.80.9540 of the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). You were further advised that the country of origin of the merchandise imported into the United States in stage 1 was Taiwan.


Whether the merchandise at issue is classifiable in Heading 6117, HTSUSA, or in Heading 6505, HTSUSA? What is the country of origin of the finished merchandise? Were the classification and origin determinations in NY B84282 correct?



Classification of merchandise under the HTSUSA is in accordance with the General Rules of Interpretation (GRI's), taken in order. GRI 1 provides that classification shall be determined according to the terms of the headings and any relative section or chapter notes.

Heading 6505, HTSUSA, provides for hats and other headgear. According to the Harmonized Commodity Description and Coding System Explanatory Notes (EN) which customs looks to as a guide in applying the HTSUSA, heading 6505 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.

Headgear is defined by The Random House Dictionary of the English Language, the Unabridged Edition (1983) as "any covering for the head, esp. a hat, cap, bonnet, etc."

The Encyclopedia Americana (International Edition 1980) defines 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.

Mary Brooks Picken's, The Fashion Dictionary (3rd ed. 1973), provides examples of numerous forms of headgear. Among these we note a chignon, "a little cap...to be worn over the bun of a chignon." Picken's at 52. Thus a chignon covers only a knot or coil of hair at the back of the neck rather than covering the crown of the head. Among the various types of hats is included an open-crown hat, a "hat with complete brim and partial crown, the center being left open so that hair shows through. Popular when hair is dressed high on the head." Picken's at 180. Similarly, turbans include an open-crown version. Picken's at 184.

In addition, headgear is also broadly defined under the HTSUSA. All of these definitions provide that headgear is more than just a means for securing or covering other parts of the body. Items which cross the head merely as a means of holding the hair (headbands), or covering the ears (earmuffs) do not meet the definitions of headgear, nor are they similar to any of the articles in the list of exemplars to Heading 6505 contained in the Explanatory Notes, the official interpretation of the HTSUSA at the international level.

GRI 2(a) states: "[a]ny reference in a heading to an article shall be taken to include a reference to that article incomplete or unfinished, provided that, as entered, the incomplete or unfinished article has the essential character of the complete or finished article. It shall also be taken to include a reference to that article complete or finished (or falling to be classified as complete or finished by virtue of this rule), presented unassembled or disassembled."

GRI 2(a) establishes a two pronged rule for classification purposes. Thus, prior to making a classification determination for this particular good, the following is required as per GRI 2(a): 1) the incomplete or unfinished good must have the essential character of the completed or finished good based on some assembly operation that has been done to the good; or 2) a sufficient number or type of elements should be present to constitute a substantially complete but unassembled product at the time of importation. If either prong is satisfied, the terms of the rule are satisfied.

With respect to the first prong, merchandise can be deemed to have the essential character of the finished product only if some significant assembly operations have taken place joining some of the components of the finished product together. Although the fabric has been cut to shape and embroidered, under prong 1, no significant assembly operations have occurred prior to importation, thus precluding the goods from having the essential character of the finished product.

In addressing the second prong, a determination that the unassembled products at the time of importation are substantially complete products only if a sufficient number or type of elements of the good are present at the time of importation. The merchandise as imported is merely the knit fabric component embroidered and cut to shape. As your company itself said in your letter of June 11, 1997, "(t)he product itself as imported will not be usable in any way, shape or form. It will need to be sewn over a piece of plastic, foam, and nylon will be added for insulation." Accordingly, the merchandise as imported does not have a sufficient number or type of elements present at the time of importation to substantiate its being a substantially completed product. It is merely a part of the finished product.

We note that the finished product does not meet any of the above referenced definitions of a hat or headgear. It merely crosses the head merely as a means of covering the ears. The fact that its entire outer surface is covered with fabric does not make it a hat or headgear. Consequently, the merchandise is not classifiable in Heading 6505.

Heading 6117, HTSUSA provides for other made up clothing accessories, knitted or crocheted; knitted or crocheted parts of garments or of clothing accessories. In addition, the EN for heading 6117 cites several articles closely resembling earmuffs and headbands. Therefore, the heading for clothing accessories provides for earmuffs and headbands, of which your merchandise seems to be a hybrid. In addition, we note that Customs has previously ruled that both textile headbands and earmuffs are classified in Heading 6117 as clothing accessories. See, HQ 086158 dated December 22, 1989; HQ 953772 dated October 7, 1994. The finished product appears to be a earmuff. The merchandise as imported is a component of an earmuff, it is properly classifiable as parts of clothing accessories


You ask for a ruling on the country of origin of the finished product.

Pursuant to Section 334 of the Uruguay Round Agreements Act (codified at 19 U.S.C. Section 3592), rules of origin were effective for textile products entered, or withdrawn from warehouse, for consumption on or after July 1, 1996. These rules were published in the Federal Register, 60 Fed. Reg. 46188 (September 5, 1995). Section 102.21, Customs Regulations (19 CFR Section 102.21), sets forth the general rules to determine country of origin. Thus, the country of origin of a textile product will be determined by a hierarchy of rules set forth in paragraphs (c)(1) through (c)(5) of Section 102.21.

Section 102.21(c)(1) states that "The country of origin of a textile or apparel product is the single country, territory, or insular possession in which the good was wholly obtained or produced."

As the finished product, is not wholly obtained or produced in a single country, territory or insular possession, paragraph (c)(1) of Section 102.21 is inapplicable.

Paragraph (c)(2) of Section 102.21 states that "Where the country of origin of a textile or apparel product cannot be determined under paragraph (c)(1) of this section, the country of origin of the good is the single country, territory, or insular possession in which each of the foreign material incorporated in that good underwent an applicable change in tariff classification, and/or met any other requirement, specified for the good in paragraph (e) of this section".

Paragraph (e) states that "The following rules shall apply for purposes of determining the country of origin of a textile or apparel product under paragraph (c)(2) of this section":

6101-6117 If the good is not knit to shape and consists of two or more component parts, a change to an assembled good of heading 6101 through 6117 from unassembled components, provided that the change is the result of the good being wholly assembled in a single country, territory, or insular possession.

As the merchandise as imported is unassembled, and all of the assembly operations occur in the U.S., pursuant to 102.21 (c)(2), the U.S. is the country of origin of the finished goods when imported at stage 1.

Paragraph (c)(3) states that where the country of origin of a textile or apparel product cannot be determined under paragraph (c)(1) or (2) of this section:

(i) If the good was knit to shape, the country of origin of the good is the single country, territory, or insular possession in which the good was knit; or

(ii) Except for goods of heading 5609, 5807, 5811, 6213, 6214, 6301 through 6306, and 6308, and subheadings 6209.20.5040, 6307.10, 6307.90, and 9404.90, if the good was not knit to shape and the good was wholly assembled in a single country, territory, or insular possession, the country of origin of the good is the country, territory, or insular possession in which the good was wholly assembled.

As the finished article is to be wholly assembled in a single country, the U.S., pursuant to section 102.21 (c)(3), the country of origin of the completed article is the U.S.

Section 304 of the Tariff Act of 1930, as amended (19 U.S.C. origin imported into the United States shall be marked in a conspicuous place as legibly, indelibly, and permanently as the nature of the article (or its container) will permit, in such a manner as to indicate to the ultimate purchaser in the United States the English name of the country of origin of the article. Part 134 of the Customs Regulations implements the country of origin marking requirements and exceptions of 19 U.S.C. ?1304.

Therefore, in the case of the earmuff components that are imported from China the outermost container must be marked as a product of China (i.e., "Made in China"). As the earmuff components become a product of the U.S. (after assembly operations completed in the U.S.), they are not subject to the country of origin marking requirements of 19 U.S.C. ?1304. Whether articles may be marked as "Made in the USA" is an issue under the authority of the Federal Trade Commission (FTC). We suggest that you contact the FTC Division of Enforcement, 6th and Pennsylvania Avenue, N.W., Washington, D.C. 20508 on the propriety of proposed markings indicating that articles are made in the U.S.



The applicable subheading for the knit earmuff component which is merely cut to shape and embroidered before importation (stage 1) is 6117.90.9090, HTSUSA, which provides for "Other made up clothing accessories, knitted or crocheted; knitted or crocheted parts of garments or of clothing accessories: Parts: Other: Other: Of man-made fibers". The rate of duty is 15.1 percent ad valorem. The earmuff component falls within textile category designation 659.

NY B84282 dated April 30, 1997, is hereby modified to reflect this classification of the merchandise imported in stage 1.

The designated textile and apparel category may be subdivided into parts. If so, 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 that 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 available for inspection at your local Customs office.

Due to the changeable nature of the statistical annotation (the ninth and tenth digits of the classification) and the restraint (quota/visa) categories applicable to textile merchandise, you should contact your local Customs office prior to importing the merchandise to determine the current status of any import restraints or requirements.


The country of origin of the finished eargear is the United States.

The holding set forth above applies only to the specific factual situation and merchandise identified in the ruling request. This position is clearly set forth in section 19 CFR 177.9(b)(1). This section states that ruling letter is issued on the assumption that all of the information furnished in the ruling letter, either directly, by reference, or by implication, is accurate and complete in every material respect.

Should it be subsequently determined that the information furnished is not complete and does not comply with 19 CFR revocation. In the event there is a change in the facts previously furnished, this may affect the determination of country of origin. Accordingly, if there is any change in the facts submitted to Customs, it is recommended that a new ruling request be submitted in accordance with 19 CFR 177.2.

NY B84282, dated April 30, 1997, is hereby modified. In accordance with 19 U.S.C. 1625(c)(1), this ruling will become effective 60 days after its publication in the Customs Bulletin. Publication of rulings or decisions pursuant to 19 U.S.C. 1625(c)(1) does not constitute a change of practice or position in accordance with section 177.10(c)(1), Customs Regulations (19 CFR 177.10(c)(1)).


John Durant, Director
Commercial Rulings Division

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