July 26, 2006 CBP Bulletin Notices on a Novelty Top Hat and Certain Skin Care Products

According to CBP, the modifications are effective for merchandise entered or withdrawn from warehouse for consumption on or after September 24, 2006.

With respect to the subject novelty hat, CBP states that any party who has received an interpretive ruling or decision on subject merchandise, and/or any person involved in substantially identical transactions, should advise CBP by August 25, 2006, the date that written comments on the proposed ruling are due. Furthermore, CBP states that an importer's failure to advise CBP of such rulings, decisions, or substantially identical transactions may raise issues of reasonable care on the part of the importer or its agent for importations subsequent to the effective date of the final decision in this notice.

CBP also states that these notices cover any rulings on the subject merchandise that may exist but have not been specifically identified.

Proposed Revocation of One Classification Ruling

Novelty top hat. The item at issue is a novelty top hat intended for use at parties, carnivals, Mardi Gras and the like. The top portion of the hat extends almost 11 inches high and its brim measures two inches wide. The hat is made of man-made fiber material, is unlined with single stitching throughout, and is available in assorted colors.

CBP is proposing to issue HQ 968139 in order to revoke NY A81378 to reflect the proper classification of the novelty top hat under HTS 6505.90, which provides for other 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, rather than under HTS 9509.90.6020 (1996), which provides for festive, carnival, or other entertainment articles, including magic tricks and practical joke articles; parts and accessories thereof; other: hats: other.

Among other things, the Explanatory Notes to Chapter 65 state that the chapter covers all hats irrespective of their use such as daily wear, theatre, disguise, or protection. CBP states that hats have many functions beyond and in addition to protection from the elements. Among those functions are as a sign of prestige and power, cultural and ethnic identity, religious affirmation, cultural traditions and beliefs or simply adornment. While the hat, with its comical and whimsical appearance, will be a source of enjoyment, humorous diversion and frivolous entertainment, the hat likely will not generate the same type of enjoyment and emotion one derives from actually playing with objects commonly thought of as articles whose primary purpose is amusement.

CBP states that when an article has both the potential for amusement and utility, the question becomes one of determining whether the amusement is incidental to the utilitarian purpose, or the utility purposes incidental to the amusement. CBP contends that the subject novelty top hat is not only amusing but also fully functional.

As a result, CBP opines that the hat is specifically provided for as a hat of HTS 6505, even if the style of the hat may prevent its use on more than an occasional basis. The hat remains an object used to wear upon the head of the purchaser. As such, it is not described by HTS 9505, as a festive, carnival or other entertainment article.

proposed: HTS 6505.90.6090 (cat 659), 20/kg7%, 6505.90.8090 (cat 659), 18.7/kg6.8%; current: 9509.90.6020, duty-free.

CBP notes that if the novelty top hat is knitted or crocheted or made up of knitted or crocheted fabric, it should be classified under HTS 6505.90.6090 (cat 659), whereas if it is made of felt or other textile fabric, the novelty top hat should be classified under HTS 6505.90.8090 (cat 659).

CBP acknowledges that witches and santa hats of durable material have been previously classified in HTS 9505; however, CBP indicates that it may reconsider the classification of these articles in the future.

Modification of Three Classification Rulings

Certain skin care products. NY 801325 covers, in part, Nutriol Eyelash Conditioner, which contains mucopolysaccharides and is used to help keep eyelashes thick, healthy, and protected. NY G88456 describes the "Irione and Les Florales" product line which consists of five skin care products. The product at issue in this modification is an eye contour gel. NY G88457 describes "Les Spcifiques" product line which also consists of five products. The subject product in this modification is an eye make-up remover lotion. All three products are packaged for retail sale.

CBP is issuing HQ 967517 in order to modify NY 801325 and classify the eyelash conditioner under HTS 3304.99.5000, which provides for other beauty or make-up preparations and preparations for the care of the skin (other than medicaments), etc. rather than under HTS 3304.20.0000, which provides for eye make-up preparations. CBP is also issuing HQ 967518 in order to modify NY G88456 and NY G88457 in order to classify the eye contour gel and the eye make-up remove lotion under HTS 3304.99.5000 rather than HTS 3304.20.0000.

CBP has previously explained that goods classified in HTS 3304.20.0000 are limited to products that are used to beautify the eye area. With regard to the products at issue, CBP states that the eye lash conditioner is for improving the condition of the eyelashes, the eye contour gel improves the condition of the eye area, and the eye makeup remover is not for beautification, but for removal of makeup.

Therefore, CBP states that these products are more appropriately classified with other skincare products that are used for cleansing and moisturizing the skin within HTS 3304.99.5000.

new: 3304.99.5000, duty-free; current: 3304.20.0000, duty-free.

(See ITT's Online Archives or 05/22/06 news, 06052255, for BP summary of the proposed rulings on subject merchandise.)

July 26, 2006 CBP Bulletin (Vol. 40, No. 31) available at http://www.cbp.gov/xp/cgov/toolbox/legal/bulletins_decisions/bulletins_2006/vol40_07262006_no31/