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HQ 963855

January 30, 2002

CLA-2 RR:CR:GC 963855 JGB


TARIFF NO.: 9503.70.0000

Port Director
Los Angeles-Long Beach Seaport
U.S. Customs Service, Attn.: Team 712
300 South Ferry Street
Terminal Island, CA 90731

RE: Protest 2704-99-101012; "Fashion Magic Scrunch 'n Wear Hairwear Making Set"

Dear Director:

This is a decision on Protest 2704--99-101012, against your decision in the classification of the "Fashion Magic Scrunch 'n Wear Hairwear Making Set" under the Harmonized Tariff Schedule of the United States (HTSUS). The entries, made in 1998, were liquidated February 19, 1999, and the protest timely filed on April 16, 1999. The protestant provided arguments at a meeting at Headquarters on October 31, 2001, supplemented by a sample and additional legal arguments provided November 6, 2001.


The merchandise consists of a Scrunch Maker, a marker, five bleeder cards, a stencil, seven elastics with fasteners, two barrettes, two tubes of glitter glue, nine scrunch textile tubes in assorted fabrics and four barrette textile tubes in assorted fabrics. The protestant claims that the merchandise is designed to provide amusement for children when they use the Scrunch Maker to make hairwear articles, such as scrunchies, or barrettes which may be worn during play. In this context, the "scrunchie" is a "scrunch ponytail holder" and the Scrunch barrette is a barrette to hold a portion of hair. Both are said to be scrunchies because they incorporate a fabric tube, in most cases of a bright, "fashion" color, which is fitted over the rigid barrette portion or the elastic resulting in a shirred effect. The name "scrunchie" appears to be derived from a combination of crush and crunch and applies to the end products assembled and decorated by the users. The Scrunch Maker is a plastic platform, about 6 x 4 inches at its base and 1¼ inch high that holds an angled plastic pole upright. Raised slots on either end of the pole permit an elastic band to be stretched between them, a span of about 5¼ inches. Then the user slides the textile tube over the pole, enabling her to grip the ends, remove the article from the pole and make the necessary attachment to form the hairwear article. Another slot in the base of the Scrunch Maker permits the insertion of the plastic barrette form for a different operation. With the barrette making process, the user attaches a barrette frame to the end of the barrette body. Then the user inserts a decorated textile tube or sleeve over the barrette frame. Then the article is removed from the Scrunch Maker and the frame is snapped onto the rest of the barrette.

You classified the merchandise in subheading 9615.11.40, HTSUS, in the provision for "Combs, hair-slides and the like; . . . , and parts thereof: Combs, hair-sides and the like: Of hard rubber or plastics: Not set with imitation pearls or imitation gemstones."

The protestant claims that the merchandise is classified in heading 9503, specifically in subheading 9503.70.00, HTSUS, the provision for “Other toys;. . .parts and accessories thereof: Other toys, put up in sets or outfits, and parts and accessories thereof."


Whether the "Fashion Magic Scrunch 'n Wear Hairwear Making Set" is classified in heading 9503, HTSUS, as other toys or as an article of heading 9615, HTSUS, as a hair-slide and the like.


Classification under the HTSUS 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 headings and legal notes do not otherwise require, the remaining GRI may then be applied. The Explanatory Notes (EN) to the Harmonized Commodity Description and Coding System, which represent the official interpretation of the tariff at the international level, facilitate classification under the HTSUS by offering guidance in understanding the scope of the headings and GRI.

The provisions of heading 9615, HTSUS, clearly describe hair ornaments such as barrettes and there is no dispute that some of the end products from the "Fashion Magic Scrunch 'n Wear Hairwear Making Set" are hair slides and the like. However, if the article qualifies for classification in heading 9503, it would be precluded from classification in heading 9615 due to note 1(l) to Chapter 96, which states that "This Chapter does not cover articles of Chapter 95 (toys, games, sports equipment)."

In considering the claim of classification of "toy", the term is not specifically defined in the tariff. The EN's to Chapter 95, HTSUS, indicate that, "this Chapter covers toys of all kinds whether designed for the amusement of children or adults." It has been Customs position that the amusement requirement means that toys should be designed and used principally for amusement. See Additional U.S. Rule of Interpretation 1(a), HTSUS. The EN's to heading 9503 state that "collections of articles, the individual item of which if presented separately would be classified in other headings in the Nomenclature, are classified in this Chapter when they are put up in a form clearly indicating their use as toys (e.g., instructional toys such as chemistry, sewing, etc., sets)."

The elements of the set considered here are put up in the same packing for retail sale without repacking. See Subheading EN to Subheading 9503.70. Some of the individual items, such as the marker, the stencils or glitter, would be classified in other headings in the Nomenclature if imported separately, but, as put up, contribute to the process of designing, decorating, and assembling the scrunchies. The assembly process would not be very difficult for a dexterous adult, yet it might present an amusing challenge for the target age of 6 "and up." The main point is the development of the assembly, handwork skills, and creative realization often lacking in the target age group. An examination of the sample discloses that the end product is only the approximation of a "real" scrunchie pony tail holder or scrunchie barrette. The "real" version of the barrette would most commonly be made partly of metal for the clasp, while the entire article is of plastic in the set under consideration. The manner of sale is another factor distinguishing the "real" version from the instant toy set. "Real" scrunchies and barrettes are sold in drug and cosmetic stores and the drug and cosmetic sections of department stores. The instant merchandise would be sold only in the toy area of a retail store. The protestant represented that the sort of scrunchie pony tail holder or scrunchie barrette that one would buy at a store would be of lesser price and higher quality than what would be produced with the instant set. The other difference is that the craft and individual design aspects of the instant set provide value surpassing the "store bought" products and amusement to the intended user.


The "Fashion Magic Scrunch 'n Wear Hairwear Making Set" is classified in subheading 9503.70.0000, HTSUS, the provision for “Other toys;. . .parts and accessories thereof: Other toys, put up in sets or outfits, and parts and accessories thereof."

The protest should be allowed.

In accordance with Section 3A(11)(b) of Customs Directive 099 3550065, dated August 4, 1993, Subject: Revised Protest Directive, you are to mail this decision, together with the Customs Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing the decision. Sixty days from the date of the decision, the Office of Regulations and Rulings will make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.gov, by means of the Freedom of Information Act, and other methods of public distribution.


John Durant, Director
Commercial Rulings Division

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