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HQ 962134




October 6, 1998

CLA-2:RR:CR:GC:962134 AML

CATEGORY: CLASSIFICATION

TARIFF NO.: 9615.11.40

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

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]

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

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