Tariff Classification of Headbands and Similar Articles

DEPARTMENT OF THE TREASURY

Customs Service

[TD 96-24]

Tariff Classification of Headbands and Similar Articles

AGENCY: Customs Service, Department of the Treasury.

ACTION: Final interpretive ruling.

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SUMMARY: This document gives notice of the change in classification of

certain textile headbands, ponytail holders and similar articles under

the Harmonized Tariff Schedule of the United States (HTSUS). In past

rulings, Customs has classified certain textile headbands in heading

9615, HTSUS, which provides for, ``[C]ombs, hair-slides and the like;

hair pins, curling pins, curling grips, hair curlers and the like,

other than those of heading 8516, and parts thereof.'' Classification

within heading 9615, HTSUS, was based on Customs'' erroneous assumption

that all-textile headbands were a form of ``hair-slide'' and therefore

expressly included within this provision of the nomenclature. Customs

has since learned that ``hair-slides'' are semi-circular loops of rigid

construction that are worn on the head. The rigid component of a hair-

slide may or may not be covered with textiles or other materials.

Several events transpired which caused Customs to reexamine its

classification of textile headbands and ponytail holders within heading

9615, HTSUS. First, at its Tenth Session, the Harmonized System

Committee of the World Customs Organization, formerly known as the

Customs Cooperation Council, approved certain amendments to the

``Harmonized Commodity Description and Coding System, Explanatory

Notes,'' one of which excluded textile headbands from heading 9615,

HTSUS. Also, the popularity of all-textile hair accessories led to an

increase in the importation of these types of articles. Customs was

confronted with the classification of assorted types of textile hair

articles, namely ponytail holders and items commercially referred to as

``scrunchies.'' These types of articles were being entered by importers

under both heading 9615 and headings 6117 and 6217, HTSUS. Clearly, a

reexamination of the classification of these articles was in order and

Customs reviewed the language and scope of heading 9615, HTSUS. Customs

concluded that the language of heading 9615, HTSUS, implicitly

contemplates articles of rigid or semi-rigid construction; this is

evidenced by the fact that every article set forth in the heading

language is of rigid or semi-rigid construction. On this basis, Customs

determined that headbands, ponytail holders and similar articles, made

entirely of textile materials, are not classifiable within heading

9615, HTSUS. Moreover, Customs has reviewed numerous newspaper and

magazine articles which persuasively establish that textile headbands,

ponytail holders and similar articles are treated in the trade and

commerce of the United States as ``accessories.'' Based on the

foregoing factors, Customs proposed classifying knitted or woven

textile headbands, ponytail holders and similar articles in headings

6117 or 6217, HTSUS, respectively, as ``other clothing accessories.''

This proposal was published in a Federal Register document on April 20,

1994. After review of the comments, Customs has determined that textile

headbands, ponytail holders and similar holders are classifiable in

heading 6117 or 6217, HTSUS, but that such articles of mixed

construction should be classified in accordance with General Rule of

Interpretation (GRI) 3.

DATES: This decision will be effective as to merchandise entered for

consumption, or withdrawn from warehouse for consumption, after June

13, 1996.

FOR FURTHER INFORMATION CONTACT: Hubbard Volenick, Office of

Regulations and Rulings, U.S. Customs Service, (202) 482-7050.

SUPPLEMENTARY INFORMATION:

Background

Classification of merchandise under the Harmonized Tariff Schedule

of the United States (HTSUS) is in accordance with the General Rules of

Interpretation (GRI's) taken in order. GRI 1 provides that

classification shall be determined

[[Page 10842]]

according to the terms of the headings and any relative section or

chapter notes.

Section XI, HTSUS, provides for textiles and textile articles.

Heading 6117, HTSUS, provides for other made up clothing accessories,

knitted or crocheted. Heading 6217, HTSUS, provides for other made up

clothing accessories, not knitted or crocheted. Heading 9615, HTSUS,

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.

At its Tenth Session the Harmonized System Committee of the World

Customs Organization, formerly known as the Customs Cooperation

Council, examined the classification of knitted headbands and approved

the following three amendments to the text of the ``Harmonized

Commodity Description and Coding System, Explanatory Notes'':

1. Explanatory Note to Heading 61.17 (page 845, new item (12)):

``Headbands, used as protection against the cold, to hold the hair in

place, etc.''

2. Explanatory Note for exclusions to Heading 63.07 (page 868, last

paragraph, new item (e): ``Knitted headbands (heading 61.17).''

3. Explanatory Note to Heading 96.15 (page 1611, new last

paragraph):

``This heading excludes textile headbands (Section XI).''

The ``Explanatory Notes'' to the Harmonized Commodity Description

and Coding System (Harmonized System) constitute the official

interpretation of the scope and content of the nomenclature at the

international level. They represent the considered views of

classification experts of the Harmonized System Committee. While not

treated as dispositive, the ``Explanatory Notes'' are to be given

considerable weight in Customs interpretation of the HTSUS. It has

therefore been the practice of the Customs Service to consult the terms

of the ``Explanatory Notes'' when interpreting the HTSUS. See T.D. 89-

80, 54 FR 35127 (August 23, 1989).

In the past, Customs has classified headbands wholly of textile

materials in heading 9615, HTSUS, with the exception of headbands made

of terry knit fabric which were classified in heading 6117, HTSUS. The

rationale for these decisions was based on Customs' erroneous

conclusion that textile headbands met the definition of the term

``hair-slides and the like.'' In the course of preparing Headquarters

Ruling Letter (HRL) 089086, dated May 22, 1992, Customs researched the

definition of the term ``hair-slide'' and concluded that such articles

are of rigid or semi-rigid construction. The pre-amendment Explanatory

Notes to heading 9615, HTSUS, supported Customs' interpretation in that

they stated that ``hair-slides and the like are usually made of

plastics, ivory, bone, horn, tortoise-shell, metal, etc.'' In HRL

089086, Customs concluded that as the textile headband at issue was not

of a rigid or semi-rigid material, it was ``incongruous'' with the

articles of heading 9615.

In a document published in the Federal Register (59 FR 18771) on

April 20, 1994, Customs furnished notice that the classification of the

subject merchandise was under review and requested comments from

interested parties.

Seven submissions were received in response to that document. All

seven opposed the change in classification.

Discussion of Comments

Comment: The U.S. tariff breakout under statistical subheading

9615.19.6010, HTSUS, was intended for textile headbands and ponytail

holders.

Response: The HTSUS is a hierarchical system in which articles

first must be classified under the applicable four digit heading, then

at the six and eight digit levels, and finally at the statistical

level. The issue here is whether the subject merchandise is classified

in heading 6117 (or 6217), HTSUS, or in heading 9615, HTSUS. A

classification analysis of the subject merchandise does not begin with

a comparison of headings 6117 or 6217, HTSUS, and a statistical

breakout at the ten digit level. An analysis of the language of heading

9615, HTSUS, reveals that this heading covers hair articles of a rigid

or semi-rigid construction (i.e., combs, hair-slides, assorted types of

curlers and hair pins). The pre-amendment Explanatory Notes to heading

9615, HTSUS, support this interpretation. Accordingly, classification

of a textile headband, ponytail holder or similar article, of a non-

rigid construction, is inappropriate within heading 9615, HTSUS.

Although the commenter correctly notes that subheading 9615.19.6010,

HTSUS, provides for hair-slides and the like made ``of textile

materials,'' this in no way means that headbands, ponytail holders and

similar articles made entirely from textile materials are classifiable

here. As stated supra, hair articles made entirely from textile

materials, of a non-rigid construction, are not classifiable within

heading 9615, HTSUS. Subheading 9615.19.6010, HTSUS, contemplates the

classification of articles which are, at a minimum, made of a rigid or

semi-rigid construction, and which also have textile components. An

example of an article classifiable within subheading 9516.19.6010,

HTSUS, would be a rigid hair-slide which is covered with a textile.

Lastly, we note that statistical subheadings (10 digit level) are

created for statistical purposes; they have no legal effect and

generally are not relevant to the classification of merchandise. See 19

U.S.C. 1484(f). Consequently, there is no legal basis for classifying

the subject merchandise under subheading 9615.19.6010, HTSUS, based on

the alleged intent of the creation of that statistical subheading.

Comment: The contemplated classification change is contrary to

prior determinations by U.S. Government agencies.

Response: The concern here is that classifying the subject

merchandise in headings 6117 or 6217, HTSUS, would subject the

merchandise to quota, which it is not subject to in heading 9615,

HTSUS. Some commenters stated that the Committee for the Implementation

of Textile Agreements (CITA) had no intention of bringing this

merchandise under quota. Textile categories are assigned to certain

subheadings at the statistical level; therefore, whether an article is

subject to a textile category is dependent on classification of the

merchandise. Goods cannot be classified under the HTSUS based on what

textile category would apply, but instead must be classified in

accordance with the GRI's.

We note that Customs will propose, to the 484(f) Committee, the

creation of statistical breakouts within headings 6117 and 6217, HTSUS,

for merchandise the subject of this notice, so that such articles could

maintain their current treatment concerning quota and visa

requirements.

Comment: Classification of the subject merchandise solely by

reference to the ``Explanatory Notes'' is contrary to law.

Response: As stated supra, classification of the subject

merchandise is not based solely upon the Explanatory Notes.

Classification of textile headbands, ponytail holders and similar

articles within headings 6117 or 6217, HTSUS, is based primarily on

these articles' recognized status as accessories and the fact that they

are not classifiable within heading 9615, HTSUS, inasmuch as they are

not of a rigid or semi-rigid construction. Customs' exclusion of

textile headbands, ponytail holders and similar articles from heading

9615, HTSUS, is supported by the Explanatory

[[Page 10843]]

Notes, both in their pre-amendment format and in the amended version.

As we stated in the Federal Register notice on this issue, we

understand that the ``Explanatory Notes'' are not dispositive, but are

to be given considerable weight and are to be consulted. That position

is consistent with relevant court cases on the issue of the application

of the ``Explanatory Notes.'' (See, e.g., Lynteq, Inc. v. United

States, 976 F.2d 693, 699 (1992) (quoting H.R. Conf. Rep. No. 576, 100

Cong., 2d Sess. 549 (1988), reprinted in 1988 U.S.C.C.A.N. 1547, 1582),

which states ``[although generally indicative of proper interpretation

of the various provisions of the [Harmonized Tariff System], the

Explanatory Notes * * * are not legally binding.]'' (See also, T.D. 89-

80, 54 FR 35127 (August 23, 1989), notice giving guidance for

interpretation of Harmonized System, in which it is stated, ``Customs

will give considerable weight to Explanatory Notes.'')

Comment: Textile headbands and ponytail holders are not clothing

accessories and therefore are not classifiable in headings 6117 and

6217, HTSUS.

Response: The term ``accessory'' is not defined in the tariff

schedule or the ``Explanatory Notes.'' Consequently, Customs and the

courts have relied on standard lexicographical sources for a definition

of the term ``accessory.'' (See Auto-Ordinance Corp. v. U.S., 822 F.2d

1566 (Fed. Cir. 1987), and U.S. v. Liebert, 59 CCPA 43, C.A.D. 1035,

450 F.2d 1405 (1971)) ``Webster's Third New International Dictionary,

Unabridged'' (1986) defines ``accessory'' as ``an object or device that

is not essential in itself but that adds to the beauty, convenience, or

effectiveness of something else * * *. Any of various articles of

apparel (as a scarf, belt, or piece of jewelry) that accent or

otherwise complete one's costume.''

Textile headbands and ponytail holders accent or otherwise complete

one's costume. In addition, these articles can be decorative and add to

the beauty of one's costume or function to hold the hair in place and

add to the effectiveness of one's costume. We believe textile headbands

and ponytail holders meet the definition of ``accessory.'' This

position is supported by the manner in which certain textile hair

accessories, commercially identified as ``scrunchies,'' are treated in

the trade and commerce of the United States. Customs has reviewed

numerous newspaper and magazine articles describing ``scrunchy''

ponytail holders and similar items as accessories.

Some commenters argue that clothing accessories are made to be used

with a particular item, or are attached or are parts of garments. These

commenters argue, therefore, that textile headbands and ponytail

holders are not clothing accessories. Many articles are not made to be

used with a particular item and are classified as clothing accessories.

For example, socks (heading 6115, HTSUS); gloves (headings 6116 and

6216, HTSUS); and scarves (headings 6117 and 6214, HTSUS). In addition,

Customs has classified articles as other clothing accessories which are

not made to be used with particular articles, e.g., earmuffs, and

textile wrist bracelets. Therefore, we do not believe it inconsistent

with the classification of other articles as accessories to classify

textile headbands and ponytail holders as accessories.

Comment: Since ponytail holders were not excluded from heading

9615, HTSUS, in the amendments to the ``Explanatory Notes,'' they

should be classified in heading 9615, HTSUS.

Response: Ponytail holders, both in function and decorative effect,

are substantially similar to textile headbands. It would create an

artificial distinction to treat these two types of articles differently

for tariff classification purposes unless expressly directed to do so

by the terms of the tariff schedule. As stated above, we are not

classifying textile headbands and ponytail holders within headings 6117

or 6217, HTSUS, based solely on amendments to the ``Explanatory

Notes.'' We believe both textile headbands and ponytail holders meet

the definition of ``clothing accessories'' and, as discussed in some

detail above, they are not classifiable within heading 9615, HTSUS.

Consequently, we believe that textile ponytail holders are not

classifiable in heading 9615, HTSUS, despite not being specifically

excluded from that heading by the ``Explanatory Notes.''

Comment: The knit woolen headband under consideration by the

Harmonized System Committee which led to the amendments to the

``Explanatory Notes'' has a different function from many textile

headbands.

Response: The language of the amendments to the ``Explanatory

Notes'' states that textile headbands are excluded from heading 9615,

HTSUS. This exclusionary language is fairly broad and does not indicate

that only knit woolen headbands should be excluded from heading 9615,

HTSUS. In addition, when the issue of textile headbands was considered

by the Harmonized System Committee, comments made by the Secretariat

supported this position. For example, the Secretariat stated, ``* * *

the articles specifically cited in the text of heading 9615 do not seem

in any way related to products of textile materials.'' Thus, we cannot

agree that the exclusionary amendment to heading 9615 for textile

headbands is in any way limited to knit woolen headbands.

Comment: Heading 9615, HTSUS, is a use provision that encompasses

hair ornaments, including headbands and ponytail holders.

Response: Heading 9615, HTSUS, provides for combs, hair-slides and

the like, hairpins, curling pins, curling grips, hair curlers, and the

like. There is nothing in the language of this heading that indicates

that classification is controlled by use. Some commenters have relied

on the language of the ``Explanatory Notes,'' which states that heading

9615 covers ``hair slides and the like for holding the hair in place or

for ornamental purposes.'' We cannot agree that this language shows

that heading 9615, HTSUS, is a use provision. To conclude that all

articles used to hold the hair in place or for ornamental purposes are

classifiable as hair-slides of heading 9615, HTSUS, would result in

many articles erroneously being classified in this heading. For

example, such articles as scarves, hats, visors, and other headwear,

would be classifiable in heading 9615, HTSUS, when they are clearly

classified elsewhere. Consequently, we cannot agree with those

commenters who argue that heading 9615, HTSUS, is a use provision.

Comment: The subject merchandise should not be classified on the

basis of whether it is of rigid or semi-rigid construction or primarily

of textile materials since such language is not contained in the HTSUS

or the ``Explanatory Notes.''

Response: The ``Explanatory Notes'' to heading 9615 exclude

``textile headbands,'' but include ``hair-slides and the like'' and

note that these articles are usually made of plastics, ivory, bone,

horn, tortoise-shell, metal, etc. The language to which the commenters

object represents Customs'' interpretation of the scope of the

pertinent headings in light of the ``Explanatory Notes'' and absent any

lexicographic definitions for ``hair slides and the like.''

Some commenters have suggested that those articles of mixed

construction, e.g., textiles and plastics, are prima facie,

classifiable in two headings, either heading 6117 or 6217, HTSUS,

(depending on whether of knit or other textile, e.g., woven

construction), and heading 9615, HTSUS. In those cases, the commenters

argued that the

[[Page 10844]]

remaining GRI's should be applied, specifically GRI 3.

GRI 3 states that when, by application of rule 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 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.

(c) When goods cannot be classified by reference to 3(a) or

3(b), they shall be classified under the heading which occurs last

in numerical order among those which equally merit consideration.

After careful consideration of these comments, we believe they have

merit. By application of GRI 1, headbands, ponytail holders and similar

articles, of mixed construction, are classifiable in heading 6117 or

6217, HTSUS, and heading 9615, HTSUS, and therefore GRI 3 provides the

relevant analysis.

GRI 3(a) does not apply when two or more headings each refer to

part only of the materials in a good. Note 1 to Chapter 61, HTSUS,

states that this chapter applies only to made up knitted or crocheted

articles. Similarly, Note 1 to Chapter 62, HTSUS, states that this

chapter applies only to made up articles of any textile fabric other

than wadding, excluding knitted or crocheted articles. Thus, articles

of headings 6117 and 6217, HTSUS, are textiles. These headings refer to

only part of the good when it is made of mixed construction, e.g.,

textiles and plastics. Similarly, heading 9615, HTSUS, which according

to the ``Explanatory Notes'' normally refers to goods made of plastics,

ivory, bone, horn, tortoise-shell, metal, etc., refers to only part of

the good when it is made of mixed construction, e.g., plastic and

textiles. Thus, GRI 3(a) is inapplicable.

The subject goods of mixed construction, therefore, would be

classifiable in accordance with GRI 3(b), and an essential character

determination must be made. This would be done on a case by case basis.

In many cases, we believe that articles of mixed construction would

remain classifiable in heading 9615, HTSUS. For example, a barrette or

clasp of plastic or metal decorated or covered with textile material

normally would be classified in heading 9615, HTSUS, since the

essential character of the article is imparted by the base, which

functions to hold the hair in place. There may be circumstances where

neither the textile nor non-textile component imparts the essential

character, in which case classification would be in accordance with GRI

3(c).

Conclusion

After careful analysis of the comments submitted and further study

of this matter, Customs finds that textile headbands, ponytail holders

and similar articles are classified as other clothing accessories of

heading 6117 or 6217, HTSUS. Those articles of mixed construction,

textiles and another material, e.g., plastics, will be classified in

accordance with GRI 3.

To allow sufficient time for interested parties to be aware of this

change and to make necessary arrangements, this change in

classification is being delayed 90 days from the date of publication in

the Federal Register.

George J. Weise,

Commissioner of Customs.

Approved: February 16, 1996.

John P. Simpson,

Deputy Assistant Secretary of the Treasury.

[FR Doc. 96-6144 Filed 3-14-96; 8:45 am]

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