CLA-2 CO:R:C:G 088774 NLP
Mr. Michael Veny
Vice President
Abe M. Knipper, Inc.
60 Sheridan Blvd.
Inwood, NY 11696
RE: Modification of HRL 087920; Headband and ponytail
holder ensembles
Dear Mr. Veny:
We have been asked to reconsider Headquarter's Ruling
Letter (HRL) 087920, dated December 20, 1990. After reviewing
the subject ruling, we have determined that the headband and
ponytail holder ensembles are classifiable as sets and,
therefore, HRL 087920 should be modified.
FACTS:
HRL 087920 dealt with the classification of four plastic
headbands with two rows of short comb teeth on the inside of the
bands and six textile and elastic ponytail holders imported in a
clear plastic pouch. HRL 087920 held that the headband and
ponytail holder ensembles were not sets pursuant to GRI 3(b)
because the headbands and ponytails holders were not classifiable
under two different headings. Therefore, the headbands and
ponytail holders were classified separately in subheading
9615.11.1000, HTSUSA, which provides for combs, hair-slides and
the like: of hard rubber or plastics: combs: valued not over
$4.50 per gross, and in subheading 9615.19.6010, HTSUSA, which
provides for combs, hair-slides and the like: other (than hard
rubber or plastics): other (than combs), of textile materials,
respectively.
ISSUE:
Whether the headband and ponytail holder ensembles qualify
as sets under the HTSUSA.
LAW AND ANALYSIS:
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 is determined
according to the terms of the headings and any relative section
or chapter notes. GRI 3(b) provides that goods put up in sets
for retail sale shall be classified as if they consisted of the
material or component which gives them their essential character.
The Explanatory Notes to GRI 3(b) state that in order to qualify
as a set, goods must consist of at least two different articles
prima facie classifiable under two headings, contain products or
articles put up together to meet a particular need or carry out
a specific activity, and be put up in a manner suitable for sale
directly to the user without repacking.
GRI 6 provides that for 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. GRI 6 thus incorporates GRIs 1 through 5 in
classifying goods at the subheading level. Since GRI 6
uses the phrase "for legal purposes" the preceding GRIs are to be
applied at the level necessary for the final legal
classification of the goods for tariff purposes. Thus, in order
to be classifiable as a set, the components must be classifiable
in at least two different headings or subheadings.
With 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, HTSUSA. 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.
Since the headband and ponytail holder ensembles are
considered sets, we must determine the essential character of the
set in accordance with GRI 3(b). Explanatory Note VIII to GRI
3(b) states that:
The 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 the
constituent material in relation to the use of the goods.
In the instant case, the essential character of the headband
and ponytail holder sets are not readily apparent. When the
component which gives the goods at issue their essential
character cannot be determined, classification is ascertained by
utilizing GRI 3(c). GRI 3(c) provides the following:
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.
The subheadings that equally merit consideration are 9615.11,
HTSUSA, and 9615.19, HTSUSA. Therefore, pursuant to GRI 3(c),
classification of the instant sets is under subheading 9615.19,
HTSUSA.
HOLDING:
The headband and ponytail holder ensembles are classifiable
as sets in subheading 9615.19.6010, HTSUSA, which provides for
combs, hair-slides and the like: other (than hard rubber or
plastics): other (than combs), of textile materials. The rate of
duty is 11 percent ad valorem.
In order to insure uniformity in Customs' classification of
this merchandise and to eliminate uncertainty, we are modifying
HRL 087920 to reflect the above classification effective as of
the date of this letter. See 19 CFR 177.9(d). However, if after
your review of this modification, you disagree with the legal
basis for our decision, we invite you to submit any arguments
you may have with respect to this matter for our review. Any
submission you wish to make should be received within thirty (30)
days of the date of this letter.
As indicated above, this notice should be considered a
modification of HRL 087920 under 19 CFR 177.9(d)(1). It will not
be applied retroactively to HRL 087920 (19 CFR 177.9(d)(2)) and
will not, therefore, affect past transactions for the importation
of the merchandise under that ruling. However, for purposes of
future transactions in merchandise of this type, HRL 087920 will
not be valid precedent. We recognize that pending transactions
may be adversely affected by this modification, in that current
contracts for importations arriving at a port subsequent to this
decision will be classified pursuant to it. If such a situation
arises, you may, at your discretion, notify this office and apply
for relief from the binding effects of this decision as may be
warranted by the circumstances.
Sincerely,
John Durant, Director
Commercial Rulings Division