CLA-2:RR:CR:GC:962134 AML
Port Director
U.S. Customs Service
300 South Ferry Street
Terminal Island, California 90731
RE: Internal Advice 22/98; Flocked Plastic Jaw Hair Clip;
of hard rubber or plastics, other; GRIs
2(b); 3(b)
Dear Port Director:
The following is our decision regarding internal advice
request number 22/98, dated June 20, 1998, initiated by
counsel on behalf of L & N Sales and Marketing, Inc., which
seeks classification of a flocked plastic jaw hair clip
pursuant to the Harmonized Tariff Schedule of the United
States (HTSUS). Samples were provided for our examination.
FACTS: Based upon the information and samples provided, the
product is a plastic hair clip, with a springed, base metal
hinge and occluding teeth. This type of product is commonly
referred to as a "butterfly" or "claw" clip. The product
has a thin layer of flocked rayon on its entire surface and
is designed to hold hair in place. The proportion of the
constituent materials by weight of the article are as
follows: plastic material - 84%; flocking - 14%; metal
springed hinge - 2 %.
ISSUE: Whether the product, a hard plastic hair clip with a
springed metal hinge covered entirely with flocked rayon,
should be classified under subheading 9615.11.40, HTSUS, as
hair-slides and the like of hard rubber or plastics not set
with imitation pearls or imitation gemstones, or under
subheading 9615.19.60, HTSUS, as other hair-slides and the
like.
LAW and ANALYSIS:
Classification of imported merchandise for rate of duty
and statistical purposes is accomplished pursuant to the
Harmonized Tariff Schedule of the United States (HTSUS).
Classification under the HTSUS is guided by the General
Rules of Interpretation of the Harmonized System (GRI's).
GRI 1, HTSUS, states in part that "for legal purposes,
classification shall be determined according to the terms of
the headings and any relative section or chapter notes[.]"
The applicable heading and subheadings under consideration
are as follows:
9615 Combs, hair-slides and the like; hairpins,
curling pins, curling grips, hair- curlers and the
like, other than those of heading 8516, and parts thereof:
Combs, hair-slides, and the like:
9615.11 Of hard rubber or plastics:
9615.11.40 Other: Not set with imitation
pearls or gemstones[.]
9615.19 Other:
9615.19.60 Other[.]
The product is described by heading 9615, which
provides for "combs, hair-slides and the like[.]" However,
the subheading within heading 9615 in which the product must
be classified cannot be determined under GRI 1. Therefore
pursuant to GRI 6, resort must then be made to the remaining
GRI's.
GRI 2 (b) provides in pertinent part that "[a]ny
reference to goods of a given material or substance shall be
taken to include a reference to goods consisting wholly or
partly of such material or substance [and] [t]he
classification of goods consisting of more than one material
or substance shall be according to the principles of [GRI]
3."
GRI 3 states, in pertinent part:
When by application of [GRI] 2(b) or for any
other reason, goods are, prima facie,
classifiable under two or more 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 . . . , 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 . . . which cannot be classified by
reference to 3(a), shall be classified by as if
they consisted of the material or component which
gives them their essential character, insofar as
this criterion is applicable.
When interpreting and implementing the HTSUS, the
Explanatory Notes (EN's) of the Harmonized Commodity
Description and Coding System may be utilized. The EN's,
while neither legally binding nor dispositive, provide a
guiding commentary on the scope of each heading, and are
generally indicative of the proper interpretation of the
HTSUS. See, T.D. 89-90, 54 Fed. Reg. 35127, 35128 (August
23, 1989). The guidance of the EN's is necessary in the
instant analysis.
EN V to GRI 3(a), p. 4, states in pertinent part that
"when two or more headings each refer to part only of the
materials contained in mixed or composite goods . . . 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 than the others. In such cases, the
classification shall be determined by [GRIs] 3(b) or 3(c)."
The product under consideration is one in which different
materials form a practically inseparable whole. Resort
then, to GRIs 3(b) and 3(c) must be made in order to make a
classification.
EN VII to GRI 3(b), p. 4, states that in "all these
cases the goods are to be classified as if they consisted of
the material or component which gives them their essential
character, insofar as this criterion is applicable."
The term "essential character" is not defined within
the HTSUS, GRI's or EN's. EN VIII to GRI 3(b), p. 4, gives
guidance, stating 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.
Recently, there have been several decisions by the
Court of International Trade (CIT) which addressed
"essential character" for purposes of GRI 3(b). Better Home
Plastics Corp. v. United States, 916 F. Supp. 1265 (CIT
1996), affirmed, 119 F. 3rd 969 (Fed. Cir. 1997), involved
the classification of shower curtain sets, consisting of an
outer textile curtain, inner plastic magnetic liner, and
plastic hooks. The Court examined the role of the
constituent materials in relation to the use of the goods
and found that, although the relative value of the textile
curtain was greater than that of the plastic liner, and that
although the textile curtain also served protective, privacy
and decorative functions, because of the fact that the
plastic liner served the essential function of keeping water
inside the shower, the plastic liner imparted the essential
character upon the set. See also Mita Copystar America,
Inc. v. United States, 966 F. Supp. 1245 (CIT 1997), motion
for rehearing and reconsideration denied, 994 F. Supp. 393
(CIT 1998), and Vista International Packaging Co. v. United
States, 19 CIT 868, 890 F. Supp. 1095 (1995), in which the
Court also looked to the role of the constituent material in
relation to the use of the goods to determine essential
character.
For the flocked plastic jaw hair clip, the
indispensable function is holding the hair in place. Rigid
plastic is the primary constituent material which
accomplishes this function. The flocked rayon covering
plays an insignificant, if any, role in the function and use
of the product, and is of such small proportion to the whole
that, although its presence requires consideration because
of its aesthetic effects, it does not transmute the plastic
clip to a textile clip. The product retains its basic shape
and form, and remains suited for its intended use. It is
the function of holding the hair in place, which is
accomplished by the rigid, occluded plastic and springed
hinge gripping the hair, which constitutes the essential
function of the product. The springed, base metal hinge
also plays a subordinate role to the plastic components of
the product, i.e., it couples and closes the plastic "jaws,"
which together perform the indispensable function of holding
the hair in place.
We note that the other criteria listed in EN VIII to
GRI 3(b) (bulk, quantity, weight or value) also lead to the
conclusion that the hard plastic component of the article
imparts the essential character of the article.
This is consistent with other rulings of this office.
Headquarters Ruling Letter (HQ) 952928, dated August 9,
1993, held a fabric covered jewelry box with a removable
fabric pouch in which the fabric pouch in each instance was
flocked to be classified in subheading 4202.92.9025, HTSUS.
However, that decision involved a determination of essential
character of the jewelry box or the pouch, not a
determination that the flocked fabric covering provided the
essential character of the jewelry box (because the tariff
provision addressed jewelry boxes wholly or mainly covered
with textile materials). In HQ 086657, dated July 13, 1990,
which held that a wood framed trunk completely covered with
fern or wicker plaiting materials is classified in
subheading 9403.80.30, HTSUS, as furniture of other
materials, including cane, ossier, bamboo, or similar
materials, the article was primarily made of fern or wicker
plaiting material, just as in this case the article is
primarily made of hard plastic, not the flocking or the
metal spring.
New York Rulings (NY) 865834 and 865841, both dated
August 23, 1991; 879842, dated November 20, 1992; 818486,
dated January 31, 1996; and A82524, dated May 15, 1996, are
also consistent with our determination. In NY 865841, there
is no evidence that the articles (a plastic headband totally
covered by textile material, elastic ponytail holders
decorated with a textile bow and other items, and a metal
spring clasp with a textile bow) are not primarily composed
of the textile component. In NY 865834, the textile
components (hairbows or a grosgrain textile ponytail holder)
are emphasized and provide form to those items, as is true
of the hard plastic in this case. In NY 879842, the article
involved is a headband and there is no evidence that it is
not primarily made from the textile covering (in regard to
the textile headbands in this ruling and NY 865841, see EN's
61.17 and 96.15, as added to the EN by Amending Supplement
No. 13, February, 1993). In NY 818486, the two barrettes
are of metal covered with plastic and there again is no
evidence that they are not primarily made from the plastic;
further, in the case of at least one barrette, the plastic
component provides the form (that of pearls). In NY A82524,
the three barrettes classified in subheading 9615.19.60,
HTSUS, were primarily made of textile and the textile
components (hairbows, as in NY 865834) are emphasized to
provide the form.
The essential character of this product is provided by
the component that "hold[s] the hair in place," (EN 96.15
(3), p. 1737). That component is the hard plastic
component. The flocked surface modifies appearance only,
does not contribute to the use or function of the product,
and is of significantly lesser bulk and weight than the
constituent material, plastic.
HOLDING:
The product, a hard plastic hair clip with a springed
metal hinge covered entirely with flocked rayon, is
classified in subheading 9615.11.40, HTSUS, which provides
for: combs, hair-slides and the like; hairpins, curling
pins, curling grips, hair-curlers and the like, other than
those of heading 8516, and parts thereof: combs, hair-slides, and the like: of hard rubber or plastics: other: not
set with imitation pearls or gemstones. The column 1,
general rate of duty is 5.3% ad valorem.
This letter should be mailed to the internal advice
requester no later than 60 days from the date of this
letter. On that date, the Office of Regulations and
Rulings will take steps to make the decision available to
Customs personnel via the Customs Rulings Module in ACS and
to the public via the Diskette Subscription Service, the
Freedom of Information Act, and other public access
channels.
Sincerely,
John Durant, Director
Commercial Rulings Division