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HQ 967737





June 30, 2005

CLA-2 RR:CR:TE 967737 ASM

CATEGORY: CLASSIFICATION

TARIFF NO.: 8205.59.5560

Mr. Dennis Morse
Licensed Customs Broker
BDP International, Inc.
2721 Walker Avenue, N.W.
Grand Rapids, MI 49504

RE: Request for classification of “The Magic Hair Beader”

Dear Mr. Morse:

This is in response to a letter, dated June 2, 2004, submitted on behalf of your client, Meijer Distribution, requesting the tariff classification of “The Magic Hair Beader” under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). A sample has been submitted to this office for examination.

FACTS:

The subject merchandise is identified as the “Magic Hair Beader”, Item # 58135. The article is a manually operated plastic grooming tool with a steel hook. It is designed for use in applying beads to children’s hair. It is packaged for retail sale as the “Magic Hair Beader”, which includes plastic beads and hair clasps. The user depresses a button on the handle of the hair beader that causes the metal rod with a hook at the tip to fully descend into a plastic hollow tube at the top of the handle where it remains locked in place. In order to release the metal rod, the user must once again depress the button.

ISSUE:

What is the proper classification for the merchandise?

LAW AND ANALYSIS:

Classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) 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 heading and legal notes do not otherwise require, the remaining GRI may then be applied. The Harmonized Commodity Description and Coding System Explanatory Notes (“ENs”) constitute the official interpretation of the Harmonized System at the international level. While neither legally 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. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

In this instance, the “Magic Hair Beader” consists of a manually operated plastic grooming tool with a steel hook, plastic beads and hair clips, which are put up as a set for retail sale at the time of importation. If classified separately, each of the three components would be classifiable in separate headings under the HTSUSA. The plastic grooming tool with steel hook would be classifiable in heading 8205, HTSUSA, which provides for “Handtools . . . not elsewhere specified or included; . . . : . . . ”; the plastic beads would be classifiable in heading 3926, HTSUSA, which provides for “Other articles of plastics and articles of other materials of headings 3901 to 3914”; and the plastic hair clips would be classifiable in heading 9615, HTSUSA, 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”. When goods are, prima facie, classifiable in two or more headings, they must be classified in accordance with GRI 3:

(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 or to part only of the items in a set put up for retail sale, 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, and goods put up in sets for retail sale, which cannot be classified by reference to 3(a), shall be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable.

In this case, each of the headings refers to only part of the items contained in the set. Pursuant to GRI 3(a), we must consider the headings equally specific in relation to the goods. Accordingly, the goods are classifiable pursuant to GRI 3(b) as if they consisted of the material or component that gives them their essential character. The EN to GRI 3(b) states:

(VII) 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.

(VIII) The factor which determines the 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.

There have been several Court decisions on “essential character” for purposes of GRI 3(b). These cases have looked to the role of the constituent materials or components in relation to the use of the goods to determine essential character. See, Better Home Plastics Corp. v. United States, 916 F. Supp. 1265 (CIT 1996), affirmed 119 F. 3d 969 (Fed. Cir. 1997); Mita Copystar America, Inc. v. United States, 966 F. Supp. 1245 (CIT 1997), rehearing denied, 994 F. Supp. 393 (CIT 1998), and Vista International Packaging Co., v. United States, 19 CIT 868, 890 F. Supp. 1095 (1995). See also, Pillowtex Corp. v. United States, 983 F. Supp. 188 (CIT 1997), affirmed 171 F. 3d 1370 (Fed. Cir. 1999).

The essential character of these articles can be determined by comparing each component as it relates to the use of the product. The primary purpose of the “Magic Hair Beader” is to affix decorative beads to the hair. This is accomplished through proper use of the manually operated hand tool. The hand tool is essential to the function of the set because it is necessary to secure each plastic bead to the hair. Clearly, the specialized hand tool provides the essential character to the set.

The HTSUSA provisions under consideration for the manually operated grooming tool are as follows:

Handtools (including glass cutters) not elsewhere specified or included; blow torches and similar self-contained torches; vises, clamps and the like, other than accessories for and parts of machine tools; anvils; portable forges; hand- or pedal-operated grinding wheels with frameworks; base metal parts thereof:

Other handtools (including glass cutters) and parts thereof:

Other:

Other:

Of iron or steel:

8205.59.55 Other

8205.59.5560 Other (including parts)

Other toys; reduced-size (“scale”) models and similar recreational models, working or not; puzzles of all kinds; parts and accessories thereof:

9503.90.00 Other

9503.90.0080 Other

The term “toy” is not defined in the HTSUSA. However, the general EN for Chapter 95 states that this “Chapter covers toys of all kinds whether designed for the amusement of children or adults.” Although nothing in heading 9503 or the relevant Chapter notes explicitly states that an item's classification as a "toy" is dependent upon its use, the Court of International Trade has found inherent in various dictionary definitions of “toy” the notion that an object is a toy only if it is designed and used for amusement, diversion or play, rather than practicality. See Minnetonka Brands, Inc. v. United States, 110 F. Supp. 2d 1020, 1026 (CIT 2000). Because heading 9503, HTSUSA, is, in relevant part, a principal use provision, classification under this provision is controlled by the principal use "of goods of that class or kind to which the imported goods belong" in the United States at or immediately prior to the date of importation. Additional U.S. Rule of Interpretation 1(a), HTSUSA. See also Primal Lite, Inc. v. United States, 182 F.3d 1362, 1365 (Fed. Cir. 1999).

In order to determine whether an article is a “toy” within the meaning of Chapter 95, HTSUSA, it is necessary to compare whether the primary purpose is to amuse or to provide a utilitarian/functional quality. See HQ 966046, dated May 16, 2003 and HQ 963638, dated November 2, 2001. In Ideal Toy Corp. v. United States, 78 Cust. Ct. 28, C.D. 4688 (1977), the court stated that "[W]hen amusement and utility become locked in controversy, the question becomes one of determining whether the amusement is incidental to the utilitarian purpose, or the utility purpose is incidental to the amusement." Therefore, if the level of play value and amusement of the article is not sufficient to constitute its principal use, the article is not a toy. See United States v. Topps Chewing Gum, Inc., 440 F.2d 1384 (1973); HQ 229863, dated February 10, 2004.

Although there may be a degree of amusement in using the manually operated hair beader hand tool, its primary purpose is to securely affix beads to the hair. Furthermore, such a tool is somewhat specialized in its use and requires a degree of care in using the metal hook to secure each bead in place against the scalp and/or strand of hair. In view of the foregoing, we find that the subject hair beader tool is not a “toy” within the meaning of Chapter 95, HTSUSA.

In classifying the manually operated plastic grooming tool with steel hook in heading 8205, HTSUSA, we note that EN 82.05(E)(1) specifically identifies other hand held grooming tools such as flat irons and curling irons as articles which are included in the heading. It is also important to note that the plastic grooming tool with steel hook is a composite good which is not classifiable pursuant to GRI 1 because it is comprised of plastic and metal components. GRI 2(b) governs the classification of goods, which consist of two or more materials. In relevant part, GRI 2(b) states that “The classification of goods consisting of more than one material or substance shall be according to the principles of rule 3.” Inasmuch as the article is a composite good, we turn to GRI 3(b), which requires that the goods be classified according to their essential character. Since the steel rod with a specialized hook on the tip is the portion of the tool that actually applies the plastic bead to the hair, we find that it is the metal component which conveys the essential character to this article.

This finding is supported by a recent CBP Headquarters Ruling (HQ) 967489, dated June 24, 2005, that is directly on point because identical merchandise, identified as the “Magic Hair Beader Styling Kit”, was classified pursuant to a GRI 3 analysis as an other handtool of steel in subheading 8205.59.5560, HTSUSA. See also, HQ 966656, dated December 15, 2003, which applied a GRI 3 analysis to classify a three prong hook grasping tool comprised of a plastic body with a plastic piston type plunger/button on top and three fine steel wires. Pushing the button caused the three steel wires to protrude out the bottom. Releasing the button allowed the wires to retract and close causing them to grip a small article between the wires, e.g., bolts, nuts, computer parts. In HQ 966656, CBP determined that the steel wires imparted the essential character of the three prong hook grasping tool because they were necessary to accomplish the tool’s primary role as a grasping device. Since the essential character of the three prong hook grasping tool was determined by the steel component, CBP held that the classification of the entire article was in subheading 8205.59.55, HTSUSA, as other handtools of iron or steel.

HOLDING:

The subject “Magic Hair Beader”, identified as Item # 58135, is classified in subheading 8205.59.5560, HTSUSA, which provides for “Handtools (including glass cutters) not elsewhere specified or included; blow torches and similar self-contained torches; vises, clamps and the like, other than accessories for and parts of machine tools; anvils; portable forges; hand-or pedal-operated grinding wheels with frameworks; base metal parts thereof: Other handtools (including glass cutters) and parts thereof: Other: Other: Other: Of iron or steel: Other (including parts)”. The 2005 column one, general rate of duty for the subject article is 5.3 percent ad valorem.

Sincerely,

Myles B. Harmon, Director

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