CLA-2 OT:RR:CTF:CPM H088397 MAB
Ms. Mika McLafferty
Grunfeld, Desiderio, Lebowitz, Silverman and Klestadt, LLP
599 Lexington Avenue 36th Floor
New York, NY 10022-7648
RE: Revocation of NY N048195; tariff classification of an EZ Comb from China
Dear Ms. McLafferty:
On February 3, 2009, U.S. Customs and Border Protection (CBP) issued your client, Telebrands Corp., New York Ruling Letter (NY) N048195. The ruling pertained to the tariff classification under the Harmonized Tariff Schedule of the United States (HTSUS) of a plastic hair accessory known as an “EZ Comb.” We have reviewed additional information and find N048195 to be in error with respect to the tariff classification.
Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. § 1625(c)(1)), as amended by section 623 of Title VI, notice of the proposed action was published in the Customs Bulletin, Vol. 52, No. 16, on April 19, 2018. No comments opposing the instant action were received in response to the notice.
FACTS:
In NY N048195, CBP stated in pertinent part, the following:
The item at issue is a plastic hair accessory referred to as an “EZ Comb.” The hair accessory measures 5 inches by 2.5 inches, and features two rows of teeth that are joined together by adjustable bands. The adjustable bands are 2.5 inches long and are embellished with imitation gemstones. This item is used by women and girls to style their hair and to create updos, pony tails, butterfly twists, French twists and additional hair styles.
The applicable subheading for the EZ Comb will be 9615.11.5000, Harmonized Tariff Schedule of the United States (HTSUS), which provides for “Combs, hair-slides and the like; hairpins, curling pins, hair-curlers, and the like, other than those of heading 8516, and parts thereof: Combs, hair-slides, and the like: of hard rubber or plastic: Other: Other.” The rate of duty will be free.
Additional information on the Telebrands website describes a similar if not identical item to the instant merchandise (called an “EZ CombsT”) as having “dual combs with 10 durable bungees that stretch and hold your hair.”
ISSUE:
Whether the subject plastic hair accessory referred to as EZ Comb is considered a hair comb of subheading 9615.11.10/30, HTSUS, or a hair-slide of subheading 9615.11.50, HTSUS?
LAW AND ANALYSIS:
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRI). 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 may then be applied.
The HTSUS provisions 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:
Combs:
9615.11.10 Valued not over $4.50 per gross
Valued over $4.50 per gross:
9615.11.20 Of hard rubber
9615.11.30 Other
Other:
9615.11.40 Not set with imitation pearls or imitation gemstones
9615.11.50 Other
The Harmonized Commodity Description and Coding System Explanatory Notes (ENs), constitute the official interpretation of the Harmonized System at the international level. While neither binding nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. T.D. 89-80, 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).
Heading 9615, HTSUS, provides for, among other things, combs, hair-slides and the like. The ENs to heading 9615, HTSUS, state that the heading covers, inter alia:
Toilet combs of all kinds, including combs for animals.
Dress combs of all kinds, whether for personal adornment or for keeping the hair in place.
Hair-slides and the like for holding the hair in place or for ornamental purposes.
These articles are usually made of plastics, ivory, bone, horn, tortoise-shell, metal, etc.
Heading 9615, HTSUS, specifically provides for combs, hair-slides and the like. Thus, there is no dispute that the instant merchandise is properly classified in heading 9615, HTSUS. Therefore, by application of GRI 6, we must determine classification at the subheading level. Regardless of whether EZ Comb is considered a comb or a hair-slide, there is no dispute that at the 6 digit level, it is classified in subheading 9615.11, HTSUS. The pertinent question therefore becomes as to its classification at the 8 digit level. The alternatives are subheadings 9615.11.10/30, HTSUS, if the article is considered a comb, i.e., plastic hair combs valued not over $4.50 per gross or valued over $4.50 per gross: Other, or subheading 9615.11.50, HTSUS, if it is considered a hair-slide or something similar, i.e., plastic hair-slides and the like…Other.
As noted above, the supporting EN states that both dress combs and hair-slides may have the dual nature of holding the hair in place and adorning the hair. The EZ Comb indeed possesses this dual nature. However, neither the EN nor the Legal Notes to heading 9615, HTSUS, provide definitions for the words comb or hair-slides.
In considering the definition of comb, we note that the previous tariff schedule (TSUSA) in Subpart A, of Schedule 7, provided “the term combs means toothed instruments having not over two rows of teeth, for adjusting, cleaning, or confining hair, or for personal adornment.” See Headquarters Rulings Letter HQ 951234 (March 11, 1992). Common definitions as found in dictionaries define a comb as “a toothed instrument used especially for adjusting, cleaning, or confining hair,’ as “a toothed strip of plastic, hard rubber, bone, wood, or metal, used for arranging the hair….or holding it in place,” as well as a “small comb-shaped object that women put in their hair to hold their hair away from their face or for decoration.”
HQ 951234 also addressed the meaning of hair-slides and the like, and found no definition for the word hair-slides. However, common definitions as found in dictionaries include that it is British term for “a typically bar-shaped clip or ornament for the hair” and that the North American term is “barrette,” that it is a British term for “a clip or bar for holding hair in place,” it is “a decorative hinged clip that girls and women put in their hair to hold it in place,” and in British it is “a hinged clip with a tortoiseshell, bone, or similar back, used to fasten the hair.
We find that the EZ Comb exhibits the characteristics of a comb and not a hair-slide and the like. Most noteworthy is that EZ Comb contains the word “comb” in its name and not “hair-slide,” “barrette,” or other like object (i.e., EZ Hair-Slide, EZ Barrette, etc.). It is therefore reasonable to assume that EZ Comb is named such because it has two combs with rows of teeth that are joined together on their non-toothed sides by adjustable elastic bands/bungees measuring 2.5 inches in length. Together the combs and bands/bungees hold the hair into place and create versatile hair styles. While the two combs are hidden underneath the hair (and therefore are not visible), the bands/bungees form a visible, decorative pattern on top of the hair. The gemstones attached to the bands/bungees are also decorative, adding to the aesthetic appearance.
A review of our prior rulings indicates that CBP has classified merchandise similar to EZ Comb in subheading 9615.11.30, HTSUS, including fashion double hair combs with metal teeth and decorative beads attached by fabric covered elastics (N086258 dated December 8, 2009), hair combs decorated with imitation pearls or plastic colored balls (NY 884650, dated May 6, 1993), decorative hair comb clips (N137675 dated January 4, 2011) and plastic toothed horseshoe headbands (N118302 dated September 3, 2010).
Since EZ Comb is anchored by two combs with teeth to secure the hair in place and does not contain any bars, hinges, or clips, it does not meet the dictionary definitions of a hair-slide (or the American-term of barrette), as noted above. Nor is it similar to any of the “hair-slides and the like” that CBP typically classifies in subheading 9615.11.50, HTSUS, including barrettes (NY 884650 dated May 6, 1993; NY K85329 dated April 26, 2004; and NY E85470 dated August 13, 1999), hair clips (N016358 dated September 5, 2007 and NY N218827 dated June 13, 2012), plastic tiaras and fabric headbands without teeth (NY PD B83463 dated April 5, 1997 and N199299 dated January 19, 2012) and a ponytailer (or scrunchie) to hold a ponytail (NY N028057 dated May 20, 2007).
Based on the above, the applicable subheading for the EZ Comb is 9615.11.10/30, 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: Combs: Valued not over $4.50 per gross/Valued over $4.50 per gross: Other.”
HOLDING:
Under the authority of GRIs 1 and 6, the subject EZ Comb is properly classifiable under subheading 9615.11.10/30, 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: Combs: Valued not over $4.50 per gross/Valued over $4.50 per gross: Other.” The 2017 general column one duty rate is 14.4¢/gross + 2% ad valorem if valued not over $4.50 per gross or 28.8¢/gross + 4.6% ad valorem if valued over $4.50 per gross.
Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUSA and the accompanying duty rates are provided on the internet at www.usitc.gov/tata/hts/.
EFFECT ON OTHER RULINGS:
NY 048195, dated February 3, 2009 is hereby REVOKED in accordance with the above analysis.
In accordance with 19 U.S.C. § 1625(c), this ruling will become effective 60 dats after its publication in the Customs Bulletin.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division