CLA-2 RR:CR:GC 959187 DWS
Mr. Abe M. Knipper
Abe M. Knipper Customs Broker
80 Sheridan Boulevard
Inwood, NY 11096
RE: Reconsideration of NYs 815120, and 815119; Trio Barrettes;
Sets;
GRIs 3(b) and (c); Explanatory Note 3(b)(VIII) and (X); HQs
088774 and 955938; NY 815121; 9615.11.40
Dear Mr. Knipper:
This is in reference to NYs 815120 and 815119, both issued
to you on October 25, 1995, concerning the classification of
packets of three styles of barrettes attached to a plastic card
(Trio Barrettes) under the Harmonized Tariff Schedule of the
United States (HTSUS). We have reviewed these rulings and
determined that the classification of the Trio Barrettes must be
reconsidered.
Pursuant to 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. 103-82, 107 Stat. 2057, 2186 (1993),
notice of the proposed revocation of NY 815120 was published on
October 29, 1997, in the CUSTOMS BULLETIN, Volume 31, Number 44.
No comments were received in response to the notice. However,
since publication of the notice, NY 815119 has come to our
attention dealing with the same issues as are involved in NY
815120. Therefore, this ruling has been revised to reconsider
both NYs 815120 and 815119. Also, in this ruling we distinguish
the subject merchandise from the merchandise in HQ 955938, dated
June 20, 1994.
FACTS:
The merchandise consists of Trio Barrettes (Styles #BA330X
and #BA4079), which are each comprised of three barrettes
attached to a plastic card on which they are sold as a unit. In
NY 815120 (Style #BA330X), Barrette A consists of simulated
pearls with gold colored beads intermittently set in between the
pearls. The pearls and beads are attached to a metal barrette
clip by plastic strands which run through holes in the center of
the beads and pearls and wind around the barrette clip. Barrette
B consists of three simulated and faceted plastic gemstones each
of which are mounted in a circular decorated setting and glued to
a metal barrette clip. Barrette C consists of three circular
plastic medallions with inlaid designs glued to a metal barrette
clip.
In NY 815119 (Style #BA4079), Barrette A consists of
simulated pearls with gold colored beads intermittently set in
between the pearls. The pearls and beads are attached to a metal
barrette clip by plastic strands which run through holes in the
center of the beads and pearls and wind around the barrette clip.
Barrette B consists of three round medallions each of which has
been set with a simulated pearl and glued to a metal barrette
clip. Barrette C consists of three gold colored oval or egg
shaped medallions with an embossed design which are glued to a
metal barrette clip.
ISSUE:
Whether the Trio Barrettes in NYs 815120 and 815119
constitute sets as defined in GRI 3(b).
LAW AND ANALYSIS:
Classification of merchandise under the HTSUS is in
accordance with the General Rules of Interpretation (GRI's). GRI
1 provides that classification is determined according to the
terms of the headings and any relative section or chapter notes.
The HTSUS provisions under consideration are as follows:
9615.11.40: [c]ombs, hair-slides and the like; hairpins,
curling pins, curling grips,
hair-curlers and the like, other than those
of heading 8516, and
parts thereof: [c]ombs, hair-slides and the
like: [o]f hard rubber or
plastics: [o]ther: [n]ot set with imitation
pearls or imitation
gemstones.
The general, column one rate of duty for goods classifiable
under this provision
is 5.3 percent ad valorem.
9615.11.50: [c]ombs, hair-slides and the like; hairpins,
curling pins, curling grips,
hair-curlers and the like, other than those
of heading 8516, and
parts thereof: [c]ombs, hair-slides and the
like: [o]f hard rubber or
plastics: [o]ther: [o]ther.
The general, column one rate of duty for goods classifiable
under this provision
is 4.4 percent ad valorem.
NYs 815120 and 815119 determined that the Trio Barrettes did
not constitute sets as defined in GRI 3(b), and, in both
rulings, held Barrettes A and B to be classifiable under
subheading 9615.11.50, HTSUS, and Barrette C to be classifiable
under subheading 9615.11.40, HTSUS.
GRI 3(b) states that:
[m]ixtures, 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.
In understanding the language of the HTSUS, the Harmonized
Commodity Description and Coding System Explanatory Notes may be
utilized. The Explanatory Notes, although not dispositive or
legally binding, provide a commentary on the scope of each
heading of the HTSUS, and are generally indicative of the proper
interpretation of these headings. See T.D. 89-80, 54 Fed. Reg.
35127, 35128 (August 23, 1989). Explanatory Note 3(b)(X) (p. 5)
states that:
[f]or the purposes of this Rule, the term "goods put up in
sets for retail sale" shall be taken to mean goods which:
(a) consist of at least two different articles which are,
prima facie, classifiable in different headings.
Therefore, for example, six fondue forks cannot be
regarded as a set within the meaning of this Rule;
(b) consist of products or articles put up together to meet
a particular need or carry out a specific
activity; and
(c) are put up in a manner suitable for sale directly to
users without repacking (e.g., in boxes or cases
or on boards).
The barrettes meet both requirements (b) and (c) above in
that they are put up together to meet the particular need of hair
care as they are used in conjunction with each other to offer the
user a choice in style, and it is our understanding that they are
put up in a manner suitable for sale directly to users without
repacking. We must now ascertain whether the barrettes meet
requirement (a).
GRI 6 states that:
[f]or legal purposes, 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 the above
rules, on the
understanding that only subheadings at the same level are
comparable. For the
purposes of this rule, the relative section, chapter and
subchapter notes apply,
unless the context otherwise requires.
In HQ 088774, dated March 13, 1991, which dealt with the
classification of headband and ponytail ensembles containing
items which were all classifiable under the subheading provisions
of heading 9615, HTSUS, we stated that:
[w]ith respect to the instant merchandise, at the heading
level, we do not have
"goods put up in sets for retail sale" since the headbands
and ponytail holders
are both classifiable in heading 9615, HTSUS. However,
since the instant
goods are classifiable under two different subheadings
within the same heading,
9615.11 and 9615.19 respectively, and they contain articles
put up together to
meet a particular need in a manner suitable for the direct
sale to the user
applicable to this merchandise, they would be considered a
set pursuant to GRI
3(b) by virtue of GRI 6.
Therefore, based upon GRI 6 and the reasoning in HQ 088774,
the Trio Barrettes, which each consist of barrettes classifiable
under subheadings 9615.11.40 and 9615.11.50, HTSUS, meet
requirement (a) in Explanatory Note 3(b)(X) and constitute sets
as defined in GRI 3(b).
The reasoning in this ruling is distinguishable from that in
HQ 955938, which dealt with the classification of a blister pack
containing three scissors. In that ruling, we stated that:
[a]ccording to [Explanatory Note] X to GRI 3(b), a set must
consist of at least two different articles. In support of this
position, the [Explanatory Note] gives the example of six
fondue forks which cannot be regarded as a "set" within the meaning of the rule as set forth above. The subject
merchandise consists of three scissors packaged together. The
only difference between them is the value of the individual
scissors. We believe that this type of merchandise, like the
six fondue fork example, does not meet the "sets" requirement of
"consisting of at least two different articles." Because the
scissors blister pack fails the first
criteria for "goods put up in sets for retail sale", they
cannot be classified as such. Therefore, the scissors in the
blister pack should be classified separately according to
their value per dozen.
The scissors in HQ 955938 were classifiable under different
subheadings of heading 8213, HTSUS; the distinction in
classification was based upon the value of the scissors only and
not a difference in their description. However, the subject
barrettes are classifiable under different subheadings in heading
9615, HTSUS, solely based upon their material description. Each
pack of barrettes contains articles created differently so as to
offer a style choice for the user. Because of such a material
difference in the barrettes, as previously stated, the Trio
Barrettes in NYs 815120 and 815119 consist of at least two
different articles and therefore meet requirement (a) of
Explanatory Note 3(b)(X).
Explanatory Note 3(b)(VIII) (p. 4) states that:
[t]he factor which determines essential character will vary
as between different
kinds of goods. It may, for example, be determined by the
nature of the material
or component, its bulk, quantity, weight or value, or by the
role of a constituent
material in relation to the use of the goods.
With regard to the Trio Barrettes, the essential character
of the sets are not readily apparent. When the component which
imparts the essential character of the goods at issue cannot be
determined, classification is ascertained by utilizing GRI 3(c).
It states that:
[w]hen 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.
Based upon GRI 3(c), the Trio Barrettes are classifiable
under subheading 9615.11.50, HTSUS.
You were issued NY 815121, dated October 25, 1995, also
dealing with Trio Barrettes. As all the barrettes involved were
held to be classifiable under one subheading provision in heading
9615, HTSUS, that ruling is not under reconsideration because
the merchandise fails requirement (a) of Explanatory Note
3(b)(X).
HOLDING:
The Trio Barrettes constitute sets as defined in GRI 3(b)
and are classifiable
under subheading 9615.11.50, HTSUS, as other combs, hair-slides
and the like, of hard rubber or plastics.
NYs 815120 and 815119 are revoked. 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)].
Sincerely,
John Durant, Director
Commercial Rulings Division