CLA-2 CO:R:C:F 952736 LPF
District Director
U.S. Customs Service
605 West Fourth Avenue, Rm. 205
Anchorage, AK 99501
RE: Decision on application for further review of Protest No.
3195-91-100209, filed November 14, 1991, concerning
classification of doll wigs; Heading 9502, HTSUSA, dolls
representing only human beings and parts and accessories
thereof.
Dear Sir:
This is a decision on a protest filed November 14, 1991,
against your decision in the classification of certain
merchandise liquidated on August 16, 1991.
FACTS:
The protest involves doll wigs, imported from Korea. The
protestant entered the articles under subheading 6704.20.00,
Harmonized Tariff Schedule of the United States Annotated
(HTSUSA), providing for wigs...of human hair, at a general column
one duty rate of 2.8 percent ad valorem.
You classified the doll wigs under subheading 9502.99.30,
HTSUSA, providing for dolls representing only human beings and
parts and accessories thereof, at a general column one duty rate
of 12 percent ad valorem.
The articles are described as 100 percent synthetic
hairgoods. Catalogues were submitted which illustrate the
numerous types of doll wigs being worn by various dolls.
ISSUE:
Whether the doll wigs are classifiable in heading 9502,
HTSUSA, as dolls representing only human beings and parts and
accessories thereof or in heading 6704 as wigs.
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LAW AND ANALYSIS:
The General Rules of Interpretation (GRI's) taken in their
appropriate order provide a framework for classification of
merchandise under the HTSUSA. Most imported goods are classified
by application of GRI 1, that is, according to the terms of the
headings of the tariff schedule and any relative section or
chapter notes. The Explanatory Notes (EN's) to the Harmonized
Commodity Description and Coding System, which represent the
official interpretation of the tariff at the international level,
facilitate classification under the HTSUSA by offering guidance
in understanding the scope of the headings and GRI's.
The subject articles are classifiable by applying GRI 1,
that is, according to the terms of the applicable heading and the
relative chapter notes. The headings at issue are 9502, which
provides for dolls representing only human beings and parts and
accessories thereof, and 6704 which provides for wigs.
In support of the articles' classification within heading
6704, counsel cites Mattel Inc., v. United States, 61 Cust. Ct.
75, C.D. 3531 (1968), where the court held that doll wigs were
classifiable within item 790.70, Tariff Schedules of the United
States (TSUS), as wigs. In addition, counsel submits that
Congress did not intend that the conversion of the TSUS to the
HTSUSA would result in a change of classification or rate of duty
for doll wigs.
The HTSUSA, which went into effect January 1, 1989, is a new
tariff system with rules of interpretation and application
somewhat different from the TSUS. As noted in H. Conf. Rep. No.
576, p.550, decisions by the Customs Service and courts
interpreting nomenclature under the TSUS are not deemed
dispositive in interpreting the HTSUSA. Nevertheless, on a case-
by-case basis, TSUS decisions should be considered instructive,
in interpreting the HTSUSA, particularly where the nomenclature
previously interpreted in those decisions remains unchanged and
no dissimilar interpretation is required by the text of the
HTSUSA.
In this instance, a dissimilar interpretation is indicated
by the text of the HTSUSA, which, contrary to the TSUS, includes
a subheading providing for parts and accessories of dolls and
includes Note 3 to Chapter 95 which provides that parts and
accessories suitable for use solely or principally with articles
of this chapter are to be classified with those articles.
Therefore, we do not find the court's interpretation of the
nomenclature under the TSUS instructive in this case. We also
note that while the underlying intent of the conversion from the
TSUS to the HTSUSA was to be revenue neutral to the extent
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possible, it was also recognized that the conversion would
result, in some cases, in changes in rates of duty. See
Conversion of the Tariff Schedules of the United States Annotated
into the Nomenclature Structure of the Harmonized System
(Conversion), USITC Publication 1400, 31, June 1983. In fact, in
Annex II of the Conversion, it was noted that, under the HTSUSA,
while cetain wigs would remain classified as wigs,...switches and
the like (within heading 6704), others would now be classified as
doll parts or accessories (within heading 9502).
It has been Customs position that doll wigs are
classifiable, within 9502, HTSUSA, as dolls representing only
human beings and parts and accessories thereof. See Headquarters
Ruling Letter 085918, issued March 2, 1990. An established and
uniform practice does not exist to the contrary, that is, of
classifying doll wigs under the eo nomine provision for wigs.
The EN's to heading 9502 provide, in pertinent part, that
parts and accessories of dolls include: heads, bodies, limbs,
eyes, moving mechanisms for eyes, voice-producing or other
mechanisms, wigs, dolls' clothing and hats (emphasis added).
Contrary to counsel's position, we do not find these EN's
"completely oblivious [and] utterly unauthoritative" in regard to
the applicable U.S. judicial decisions and the Additional U.S.
Rules of Interpretation (AUSRI).
Originally, for an article to be classified as a part of
another article, that article must have been "something necessary
to the completion of that article...[and] an integral,
constituent, or component part, without which the article to
which it is to be joined, could not function as such article."
United States v. Willoughby Camera Stores, Inc., 21 CCPA 322,
324, T.D. 46, 51 (1933), cert. denied, 292 U.S. 640 (1934);
United States v. Antonio Pompeo, 43 CCPA 9, 11, C.A.D. 602
(1955). This rule has been somewhat modified so that a device
may be considered a part of an article even though the device is
not necessary to the operation of the article, provided that once
the device is installed, the article cannot function properly
without it. Clipper Belt Lacer Co., Inc. v. United States, Slip
Op. 90-22 (Ct. Int'l Trade, decided March 13, 1990).
Because 9502 provides for dolls representing only human
beings, and human beings, characteristically, have hair, it may
be argued that dolls (representing only human beings) cannot
function properly without doll wigs. Thus, doll wigs may fit the
criteria describing a part. However, in any event, doll wigs may
be considered a doll accessory. Because there is no legal
definition provided in the HTSUSA for an "accessory," we must use
other sources to define the term. An accessory is defined as, "a
thing of secondary importance; an object or device not essential
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in itself but adding to the...convenience or effectiveness of
something else." See Webster's Ninth New Collegiate Dictionary
49 (1990). See also Auto-Ordinance Corp. v. U.S., 822 F.2d 1566
(Fed. Cir. 1987), citing, U.S. v. Liebert, 59 CCPA 43, C.A.D.
1035, 450 F.2d 1405 (1971). Among other things, accessories may
widen the range of uses of the main article. Doll wigs add to
the effectiveness and widen the range of use of a doll.
Additionally, the doll wigs, by their particular shape and size,
specifically are designed to fit on dolls. Thus, because the
doll wigs appear to be solely or principally used with dolls,
they may be considered accessories.
In this regard, Note 3 to Chapter 95 provides that parts and
accessories suitable for use solely or principally with articles
of this chapter are to be classified with those articles.
Counsel opines that since an eo nomine designation (i.e., wigs)
requires no consideration of use, that Note 3 is inapplicable and
that, in any event, Note 3 is not "special" language or context
which would bar the application of AUSRI 1(c). See AUSRI 1(c)
stating that in the absence of special language or context which
otherwise requires, a provision for parts or parts and
accessories shall not prevail over a specific provision for such
part or accessory.
Counsel cites C.S.D. 79-140, 13 Cust. Bull. 1198 (1978) and
Pistorino & Co., Inc. v. The United States, 66 CCPA 95, C.A.D.
1227 (1979) where it was stated that a general rule exists
precluding consideration of use in eo nomine designations and
that use is not a criterion in determining whether merchandise is
classifiable under an eo nomine designation, where the provision
is clear and unambiguous, without any suggestion that the element
of use should influence the classification of merchandise
thereunder. However, the court frequently has considered the use
of various articles in order to determine whether they were
classifiable within certain eo nomine provisions. For instance,
in Sanji Kobata et al. v. United States, 66 Cust. Ct. 341, C.D.
4213 (1971), W & J Sloane, Inc. v. United States, 76 Cust. Ct.
62, C.D. 4636 (1976), and J.E. Mamiye & Sons, Inc. v. United
States, 85 Cust. Ct. 92, C.D. 4878 (1980), the court reasoned
that it, "is not so trusting [of its] own notions of what things
are as to be willing to ignore the purpose for which they were
designed and made and the use to which they were actually put."
We note that Chapter 95 includes numerous eo nomine
provisions. It is apparent that Note 3 (i.e., parts and
accessories for use with articles of this chapter) was intended
to apply to all the provisions included within Chapter 95. To
hold otherwise, would render Note 3 ineffective. The use of the
wigs, as evidenced by their appropriate size and design for
specific dolls and marketing as doll accessories, provides
indicia of their classification as doll parts or accessories.
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We disagree with counsel's assessment that Note 3 is
inapplicable because it does not appear within Chapter 67 (where
wigs are classified) and, consequently, the goods must be
classified pursuant to AUSI 1(c). GRI 1 provides that for legal
purposes, classification is determined, inter alia, by chapter
notes. Note 3 to Chapter 95 is legally binding and constitutes
"special language or context" which prevails over AUSI 1(c).
It is Customs position that the terms of heading 9502, Note
3 to Chapter 95, and the EN's to 9502 all indicate that the doll
wigs are classifiable within heading 9502. The appropriate
subheading is 9502.99.3000.
HOLDING:
The doll wigs are classifiable in subheading 9502.99.3000,
HTSUSA, as "[d]olls representing only human beings and parts and
accessories thereof: Parts and accessories: Other: Other." The
general column one rate of duty is 12 percent ad valorem.
Because the rate of duty under the classification above is
the same as the liquidated rate, you are instructed to deny the
protest in full. A copy of this decision with the Form 19 should
be sent to the protestant.
Sincerely,
John Durant, Director
Commercial Rulings Division