CLA-2-96:OT:RR:NC:N4:433
Kathy Trotta
Administrative Assistant
Conair Corporation
150 Milford Road
East Windsor, NJ 08520
RE: The tariff classification of a hair accessory from China.
Dear Ms. Trotta:
In your letter dated February 29, 2016, you requested a tariff classification ruling. We note in your ruling request that a sample was enclosed, however, this office never received the sample.
We also note that the material breakdown information does not include weight, cost or other identifying factors. Nevertheless, an essential character analysis at the subheading level of the Harmonized Tariff Schedule of the United States (HTSUS) will be conducted using descriptive literature and the depicted photo. Additional information was received which included a color photo of the hair accessory and instructions on how to use the hair accessory.
Item number 53672prm is the “1 Pk Slipknot Jester.” It is a hair accessory that when placed in one’s hair {resembles} the horns of a jester’s cap or crown consisting of a plastic cylindrical roller/bobbin, elastic band and textile ribbons flowing from the under-portion of the roller/bobbin. The hair accessory consists of plastic, rubber (elastic band), Lurex (type of yarn or fabric that incorporates a glittering metallic thread) and nylon. Company provided information indicates the following instructions: “(1) Gather hair into a half ponytail or full ponytail, (2) Slide the slipknot tool into the middle of the gathered air, (3) Wrap elastic around hair to secure ponytail with slipknot tool inside and (4) If style includes ribbons, spread the ribbons out and mix into the ponytail.”
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. Under GRI 6, the classification of goods in the subheadings of a heading shall be determined according to the terms of those subheadings and any related subheading notes and, mutatis mutandis, to GRIs 1 through 5.
Taking into account that heading 9615, HTSUS, provides in pertinent part for “Combs, hair-slides and the like,” neither the HTSUS nor the Explanatory Notes to the HTSUS provides a definition or meaning to the term “hair-slides.” When terms are not defined in the HTSUS or the Explanatory Notes (ENs) to the HTSUS, they are construed in accordance with their common and commercial meaning – Nippon Kogasku (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).
For purpose of discussion, the Online Oxford English Dictionary (OED) using the definition for “hair” as compounded for the meaning of “hair-slide” and cross referenced to the OED definition of “slide,” at n. 6, a “hair-slide” is a clasp for fastening in the hair. We also find no restrictions in the meaning of hair-slide for the types of ornamentation that can be used in the creating or producing of the hair clasp. The only restrictions in heading 9615, HTSUS, is that the hair-slides be of rigid and semi-rigid construction, and not merely of textile fabric – see HQ 089086 dated May 22, 1992, and confirming position in Treasury Decision, T.D. 56059 (23), as published in the Bureau letter dated November 8, 1963.
Examination of the photo indicates that the item consists of rigid roller/bobbin, a tool, that when slipped under the half ponytail or full ponytail and tied with the elastic band forms a type of ornamented hair clasp with ribbons interspersed along the half or full ponytail. Accordingly, it is our position that the merchandise concerned falls within the provisions for “hair-slides and the like” of heading 9615, HTSUS.
As we have competing subheadings within the provisions of heading 9615, HTSUS, specifically, “hair-slides and the like,” GRI 6, HTSUS is implicated. GRI 2 of the HTSUS is inapplicable to the merchandise concerned, in that the good is not incomplete or unfinished nor unassembled or disassembled.
GRI 3 in conjunction with GRI 6 provides as follows:
When, by application of rule 2 (b) or for any other reason, goods are, prima facie, classifiable under two or more [sub]headings, classification shall be effected as follows:
(a) The heading which provides the most specific description shall be preferred to headings providing a more general description. However, when two or more headings each refer to part only of the materials or substances contained in mixed or composite goods or to part only of the items in a set put up for retail sale, those headings are to be regarded as equally specific in relation to those goods, even if one of them gives a more complete or precise description of the goods.
(b) Mixtures, composite goods consisting of different materials or made up of different components, and goods put up in sets for retail sale, which cannot be classified by reference to 3 (a), shall be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable.
(c) When goods cannot be classified by reference to 3 (a) or 3 (b), they shall be classified under the heading which occurs last in numerical order among those which equally merit consideration.
GRI 3 (a), HTSUS, cannot be used to classify the merchandise concerned, because two or more [sub]headings each refer to part only of the materials contained in the mixed or composite good.
The merchandise concerned is composed of different components (i.e., plastic, rubber, Lurex and nylon) and is considered a composite good. The ENs to the HTSUS, at GRI 3 (b) (VIII), state that “the factor which determines essential character will vary between different kinds of goods. It may for example, be determined by the nature of the materials or components, its bulk, quantity, weight or value, or by the role of a constituent material in relation to the use of the goods.” When the essential character of a composite good can be determined, the whole product is classified as if it consisted only of the material or component that imparts the essential character to the composite good.
In the United States Court of International Trade, The Home Depot, U.S.A., Inc., v. the United States, Slip Op. 06-49, Court No. 00-00061, dated April 7, 2006, the Court considered all factors in evidence to determine essential character and that these factors were to be reviewed as a whole. See Slip Op. 06-49, for a listing of factors reviewed. Consistent with The Home Depot case, we will consider all facts as presented, assign weight to those facts, and if possible decide which of the constituent materials or components impart the essential character to the merchandise concerned.
We acknowledge that the roller/bobbin is the underlying tool that provides the lift for the half or full ponytail, but it is unseen and requires the elastic band to complete the fastening device. The role of the constituent material in relation to the use of the good is diminished, when compared against the glistening Lurex fabric “ribbons” that visibly adorn one’s hair and makes a statement of attention to one’s personal beauty and/or appearance. It is our position that the Lurex ribbons impart the essential character to item number 53672prm, the “1 Pk Slipknot Jester.”
The applicable subheading for item number 53672prm, the “1 Pk Slipknot Jester,” will be 9615.19.6000, Harmonized Tariff Schedule of the United States (HTSUS), which provides for “Combs, hair-slides and the like; hair pins, curling pins, curling grips, hair-curlers and the like, other than those of heading 8516, and parts thereof: Combs, hair-slides and the like: Other: Other.” The rate of duty will be 11% 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 World Wide Web at http://www.usitc.gov/tata/hts/.
This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 C.F.R. 177).
A copy of the ruling or the control number indicated above should be provided with the entry documents filed at the time this merchandise is imported. If you have any questions regarding the ruling, contact National Import Specialist Neil H. Levy at [email protected].
Sincerely,
Deborah C. Marinucci
Acting Director
National Commodity Specialist Division