[Federal Register Volume 61, Number 52 (Friday, March 15, 1996)]
[Notices]
[Pages 10841-10844]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-6144]



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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]
BILLING CODE 4820-02-P