Tariff classification of ponytail holders

HQ H054810 May 12, 2009 CLA-2 OT:RR:CTF:TCM H054810 GC CATEGORY: Classification TARIFF NO.: 5609.00.30; 5609.00.40 Kevin Maher C-Air Customhouse Brokers 181 South Franklin Avenue Valley Stream, New York 11581 RE: Tariff classification of ponytail holders Dear Mr. Maher: This is in response to your letter of February 18, 2009, written on behalf of your client, The Children’s Place, in which you request U.S. Customs and Border Protection (CBP) to issue a binding ruling on the tariff classification, under the Harmonized Tariff Schedule of the United States (HTSUS), for three ponytail holders. Your ruling request was forwarded to this office from the National Commodity Specialist Division in New York on March 17, 2009, for reply. FACTS: At issue are three ponytail holders, identified as “twisters” (style K9094M0011-BG). All three articles are constructed of looped stretch cord made of textile fabric sheathed over a rubber core and decorated with a single plastic bead, a bow, and a plastic figure of either a black cat, a purple pointed hat, or an orange jack-o-lantern. The band, bead, and bow composing the ponytail holder featuring the black cat are all pink. The black cat is itself decorated with silver glitter embedded within the plastic, and features green eyes, pink nose, red mouth, and red ears. The band, bead, and bow of the ponytail holder featuring the purple hat are all black. The purple hat, which resembles a witch’s hat, is also decorated with glitter embedded in the plastic. A pink band with a yellow buckle is painted on the front of the hat. The jack-o-lantern is decorated with glitter embedded in the plastic, and has green eyes with a black nose and mouth. The band, bead, and bow accompanying the jack-o-lantern are all green. Each ponytail holder is attached to a black hang tag, which includes reference to the manufacturer and has the word “Halloween” on the front in stylized font. ISSUES: Whether the subject ponytail holders are festive articles of heading 9505, HTSUS, heading 6307, HTSUS, as other made up articles, heading 5609, HTSUS, as articles of yarn, strip or the like of heading 5404 or 5405, twine, cordage, rope or cables, not elsewhere specified or included, or heading 3926, HTSUS, as other plastic articles? LAW AND ANALYSIS: Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). 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 2 through 6 may then be applied in order. The HTSUS provisions under consideration in this case are as follows: 3926 Other articles of plastics and articles of other materials of headings 3901 to 3914: 3926.40.00 Statuettes and other ornamental articles… * * * 3926.90 Other: Beads, bugles and spandles, not strung (except temporarily) and not set; articles thereof, not elsewhere specified or included: 3926.90.35 Other… * * * 5609 Articles of yarn, strip or the like of heading 5404 or 5405, twine, cordage, rope or cables, not elsewhere specified or included: * * * 5609.00.30 Of man-made fibers… 5609.00.40 Other… * * * 6307 Other made up articles, including dress patterns: 6307.90 Other: 6307.90.90 Other… * * * 9505 Festive, carnival or other entertainment articles, including magic tricks and practical joke articles; parts and accessories thereof: 9505.90 Other: Note 1(t) to Section XI, HTSUS, excludes, in pertinent part, “articles of chapter 95…” Thus, if the subject merchandise is described by the terms of heading 9505, HTSUS, then it is excluded from classification in Section XI, HTSUS. Halloween is a recognized holiday. A Jack-o-lantern is a recognizable symbol of Halloween. A black cat and a traditional witch’s hat have also been found to be recognizable symbols of Halloween. See, e.g., Headquarters Ruling Letter (HQ) 961521, dated February 9, 1999; New York Ruling Letter (NY) J85743, dated June 17, 2003; and NY E85645, dated September 8, 1999. However, Note 1(v) to Chapter 95, HTSUS, excludes “[t]ableware, kitchenware, toilet articles, carpets and other textile floor coverings, apparel, bed linen, table linen, toilet linen, kitchen linen and similar articles having a utilitarian function (classified according to their constituent material)”. The subject ponytail holders, being similar to apparel, fall within the scope of the exclusionary note, and thus are not classifiable in heading 9505, HTSUS. Because the instant ponytail holders are composed of different materials (i.e. elasticized band, plastic figure, bead, and textile bow) and are not classifiable by application of GRIs 1 or 2, GRI 3 is implicated. In particular, GRI 3(b) states, in pertinent part: (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 its discussion concerning “essential character,” the Harmonized Commodity Description and Coding System Explanatory Note (EN)  to GRI 3(b) states that: The 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. The essential character of the instant ponytail holders is imparted by the elasticized band, as this component is responsible for the subject merchandise performing its intended function, to hold a ponytail in place. Furthermore, the elasticized band facilities any decorative effects for which the bow and plastic figures may be intended. Accordingly, the instant ponytail holders are classified under heading 5609, HTSUS, as twine, cordage, rope or cables, not elsewhere specified or included in the Nomenclature. See, e.g., NY N051590, dated February 12, 2009; NY N018783, dated November 7, 2007; and NYM83673, dated May 22, 2006. HOLDING: By application of GRI 3(b), the subject ponytail holders are classified in heading 5609, HTSUS, which provides for: “[a]rticles of yarn, strip or the like of heading 5404 or 5405, twine, cordage, rope or cables, not elsewhere specified or included”. By application of GRI 6, the subject ponytail holders are classifiable in either subheading 5609.00.30, HTSUS, or subheading 5609.00.40, HTSUS, depending on the composition of the center core of the elasticized band. The column one, general rate of duty for merchandise of subheading 5609.00.30, HTSUS, is 4.5 percent ad valorem. The column one, general rate of duty for merchandise of subheading 5609.00.40, HTSUS, is 3.9 percent ad valorem. Duty rates are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the World Wide Web at www.usitc.gov/tata/hts. A copy of this ruling letter should be attached to the entry documents filed at the time the goods are entered. If the documents have been filed without a copy, this ruling should be brought to the attention of the CBP officer handling the transaction.  Sincerely, Gail A. Hamill, Chief Tariff Classification and Marking Branch