CLA–2 OT:RR:CTF:TCM H186959 AMM
Port Director
Service Port – Anchorage
605 W. 4th Ave., Suite 230 Anchorage, AK 99501
Attn: Karen Beaudin, Import Specialist
RE: Internal Advice; Classification of certain silicone bands
Dear Port Director,
This is in regard to a request for Internal Advice from the Service Port of Anchorage (the Port) initiated by Aero Rubber Company, Inc. (Aero), pursuant to 19 C.F.R. §177.11. At issue is the classification of certain silicone bands, under the Harmonized Tariff Schedule of the United States (HTSUS). Samples were provided by Aero for review.
FACTS:
This request for internal advice concerns the classification of certain silicone bands. In their submission dated August 4, 2011, Aero identified eighteen (18) products for which they sought a classification ruling. Aero submitted samples of each product, and a short description detailing the material, printing method, size, and intended use.
Exhibit B shows a flat profile, red colored silicone band with raised edges and embossed (raised) lettering reading “S.T.A.M.P. Out Bullying.” The circular band has no snaps or other means of closure. It is sized to be slipped over the hand and worn around the wrist.
Exhibit C is similar to exhibit B: it shows a flat profile, blue colored silicone band with lowered (debossed) lettering reading “SUPER READER.” The circular band has no snaps or other means of closure. It is sized to be slipped over the hand and worn around the wrist.
Exhibit D is similar to exhibit B: it shows both a flat profile, orange/black/yellow colored silicone band with lowered (debossed) lettering reading “HARBOR HILLS DAY CAMP,” and a flat profile, purple colored silicone band with lowered (debossed) lettering reading “CAMPTASTIC.” The circular band has no snaps or other means of closure. It is sized to be slipped over the hand and worn around the wrist.
Exhibit E is similar to exhibit B: it shows a flat profile, yellow colored silicone band with ink deposited lettering reading “HMS WILDCATS.” The circular band has no snaps or other means of closure. It is sized to be slipped over the hand and worn around the wrist.
Exhibit F shows a flat profile, brown colored silicone band with no printing of any kind. The circular band has no snaps or other means of closure. It is sized to be slipped over the hand and worn around the wrist.
Exhibit G shows a flat profile, gray colored “PromostretchTM” silicone band with no printing of any kind. The circular band has no snaps or other means of closure. It is sized to be slipped over the hand and worn around the wrist. CBP notes that this band broke when it was stretched to fit over a person’s wrist.
Exhibit H shows a flat profile, white colored “PromostretchTM” silicone band with blue ink deposited lettering reading “PERRY TECHNICAL INSTITUTE.” The circular band has no snaps or other means of closure. It is sized to be slipped over the hand and worn around the wrist. CBP notes that this band broke when it was stretched to fit over a person’s wrist.
Exhibit I shows a flat profile, gray colored silicone band with debossed lettering reading “TXTNG KILLS.” The circular band has no snaps or other means of closure. It is sized to be slipped over the thumb or other digit and worn as a ring.
Exhibit J shows a flat profile, opaque “PromostretchTM” silicone band with black ink deposited lettering reading “Ring Wrapper.” The circular band has no snaps or other means of closure. It is sized to be slipped over the thumb or other digit and worn as a ring.
Exhibit K shows a flat profile, white colored “PromostretchTM” silicone band, with blue ink deposited lettering reading “ALASKA.” The circular band has no snaps or other means of closure. Its size is similar to that of Exhibit B. Aero states that the use of this product is unknown.
Exhibit L shows a flat profile, red colored “PromostretchTM” silicone band, with white ink deposited lettering reading “SMALL.” The circular band has no snaps or other means of closure. Its size is similar to that of Exhibit B. This product is used to bind clothing.
Exhibit M is similar to exhibit L: it shows a flat profile, orange colored “PromostretchTM” silicone band, with white ink deposited lettering reading “X-LARGE.” The circular band has no snaps or other means of closure. Its size is similar to that of Exhibit B. This product is used to bind clothing.
Exhibit N is similar to exhibit L: it shows a flat profile, opaque “PromostretchTM” silicone band, with black ink deposited showing the letter “M.” The circular band has no snaps or other means of closure. Its size is similar to that of Exhibit B. This product is used to bind clothing.
Exhibit O is similar to exhibit L: it shows a flat profile, white colored “PromostretchTM” silicone band, with black ink deposited lettering reading “MENS CAP & TEE.” The circular band has no snaps or other means of closure. Its size is similar to that of Exhibit B. This product is used to bind clothing.
Exhibit P shows a flat profile, pink colored “PromostretchTM” silicone band, with white ink deposited lettering reading “Walt Disney World®.” The circular band has no snaps or other means of closure. Its size is much larger, measuring approximately 16 inches around. Aero does not clearly identify a use for this product, but states that it is “promotional material.”
Exhibit Q is similar to exhibit P: it shows a flat profile, blue colored “PromostretchTM” silicone band, with white ink deposited lettering reading “Navigators” on one side, and “www.navg.co.uk” on the other. The circular band has no snaps or other means of closure. Its size is much larger, measuring approximately 16 inches around. Aero does not clearly identify a use for this product, but states that it is “promotional material.”
Exhibit R is similar to exhibit P: it shows a flat profile, blue colored “PromostretchTM” silicone band, with white ink deposited lettering reading “Patient Handbook.” The circular band has no snaps or other means of closure. Its size is much larger, measuring approximately 16 inches around. The product is used to bind papers.
Exhibit S includes three flat profile bands, in three colors and three different sizes, each made of “PromostretchTM” silicone material. None of the bands are printed. They have no snaps or other means of closure. Aero states that the use of these products is unknown.
ISSUE:
What is the classification of the instant merchandise under the HTSUS?
LAW AND ANALYSIS:
Classification of goods under the HTSUS is governed by the General Rules of Interpretation (GRI). GRI 1 provides that classification 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 2011 HTSUS provisions at issue are as follows:
3926 Other articles of plastics and articles of other materials of headings 3901 to 3914:
3926.90 Other:
3926.90.99 Other
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4911 Other printed matter, including printed pictures and photographs
4911.10.00 Trade advertising material, commercial catalogs, and the like
Other:
4911.99 Other:
Other:
4911.99.80 Other
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7117 Imitation jewelry:
7117.90 Other:
Other:
Valued over 20 cents per dozen pieces or parts:
Other:
7117.90.75 Of plastics
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Note 2 to Section VII (which covers Chapter 39), HTSUS, states: “Except for the goods of heading 3918 or 3919, plastics, rubber and articles thereof, printed with motifs, characters or pictorial representations, which are not merely incidental to the primary use of the goods, fall in chapter 49.”
Note 1 to Chapter 39, HTSUS, states, in pertinent part:
Throughout the tariff schedule the expression "plastics" means those materials of headings 3901 to 3914 which are or have been capable, either at the moment of polymerization or at some subsequent stage, of being formed under external influence (usually heat and pressure, if necessary with a solvent or plasticizer) by molding, casting, extruding, rolling or other process into shapes which are retained on the removal of the external influence[.]
Note 2 to Chapter 39, HTSUS, states, in pertinent part: “This chapter does not cover: … (l) Synthetic rubber, as defined for the purposes of chapter 40, or articles thereof; … (r) Imitation jewelry of heading 7117; ...”.
Note 4 to Chapter 40, HTSUS, states, in pertinent part:
In note 1 to this chapter and in heading 4002, the expression "synthetic rubber" applies to:
(a) Unsaturated synthetic substances which can be irreversibly transformed by vulcanization with sulfur into non-thermoplastic substances which, at a temperature between 18EC and 29EC, will not break on being extended to three times their original length and will return, after being extended to twice their original length, within a period of 5 minutes, to a length not greater than 1-1/2 times their original length. For the purposes of this test, substances necessary for the cross-linking, such as vulcanizing activators or accelerators, may be added; the presence of substances as provided for by note 5(b)(ii) and (iii) is also permitted. However, the presence of any substances not necessary for the cross-linking, such as extenders, plasticizers and fillers, is not permitted;
* * *
Note 9 to Chapter 71, HTSUS, states, in pertinent part:
For the purposes of heading 7113, the expression "articles of jewelry" means:
(a) Any small objects of personal adornment (for example, rings, bracelets, necklaces, brooches, earrings, watch chains, fobs, pendants, tie pins, cuff links, dress studs, religious or other medals and insignia);
* * *
Note 11 to Chapter 71, HTSUS, states:
For the purposes of heading 7117, the expression "imitation jewelry" means articles of jewelry within the meaning of paragraph (a) of note 9 above (but not including buttons or other articles of heading 9606, or dress combs, hair slides or the like, or hairpins, of heading 9615), not incorporating natural or cultured pearls, precious or semiprecious stones (natural, synthetic or reconstructed) nor (except as plating or as minor constituents) precious metal or metal clad with precious metal.
The Harmonized Commodity Description and Coding System Explanatory Notes (EN), constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the EN provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of the headings. It is CBP’s practice to consult, whenever possible, the terms of the ENs when interpreting the HTSUS. See T.D. 89–80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
The General EN to Chapter 49 states, in pertinent part: “With the few exceptions referred to below, this Chapter covers all printed matter of which the essential nature and use is determined by the fact of its being printed with motifs, characters or pictorial representations[.]”
This is in regard to your request for internal advice concerning the classification of certain silicone bands, entered at the Port of Anchorage. Aero's submission, dated August 4, 2011, concerns the classification of eighteen (18) different products, for which samples were submitted. They are all similar, but vary by material, size and shape, method of printing, and intended use.
Heading 3926, HTSUS, provides in pertinent part for “Other articles of plastics”. The phrase “plastics” is defined in Note 1 to Chapter 39, HTSUS. While the term “article” is not defined in the HTSUS, the Court of Customs and Patent Appeals (the predecessor to the Court of Appeals for the Federal Circuit) discussed the meaning of this phrase. “In some instances [the word ‘article’] is used as a synonym for ‘thing’ and embraces any importation, and in other contexts it takes on a narrower meaning …, namely, a manufactured thing or product.” United States v. A. Johnson & Co., 588 F.2d 297, 300 (C.C.P.A. 1978).
All eighteen (18) of the instant products are made of silicone. Products made of silicone do not meet the definition of “synthetic rubber” given in Note 4 of Chapter 40, HTSUS, because they are not “unsaturated synthetic substances which can be irreversibly transformed by vulcanization with sulfur into non-thermoplastic substances”. Thus, Note 2(l) of Chapter 39 does not preclude classification of the shaped silicone bands from classification under heading 3926, HTSUS.
The instant silicone bands meet the definition of “plastics” contained in Note 1 of Chapter 39. Silicone, as a raw material, is provided for under heading 3910, HTSUS. Furthermore, the instant silicone bands meet the definition of “article” contained in United States v. A. Johnson & Co., as they are manufactured things or products. Therefore, the instant products are each classifiable under heading 3926, HTSUS, specifically under subheading 3926.90.99, HTSUS.
However, CBP notes that articles of plastics, printed with motifs, characters or pictorial representations, which are not merely incidental to the primary use of the goods, fall in Chapter 49, HTSUS. See Note 2 to Section VII, HTSUS. Aero asserts that the products identified by exhibits K, L, M, N, O, P, Q, and R, meet this exception, and are classifiable under heading 4911, HTSUS. Furthermore, CBP notes that articles of imitation jewelry are not covered by Chapter 39, HTSUS. See Note 2(r) to Chapter 39, HTSUS. Aero asserts that the products identified by exhibits B, C, D, E, F, G, H, I, and J, meet this exception, and are classifiable under heading 7117, HTSUS.
In Headquarters Ruling Letter (HQ) 967463, dated February 10, 2005, CBP considered the classification of a laminated polyethylene/aluminum wrap, printed with the words "Lindt" and "Lindor", both of which are trademarks. The importer asserted that these features established the essential nature and use of the truffle wrap, as printed matter, by allowing the ultimate purchaser to identify the truffles that will later be packaged in the wrap. However, CBP found that, while the trademarks and UPC codes may be helpful to the ultimate consumer, this use was incidental to the wrap's primary use of protecting the truffle. CBP found that the truffle wrap could not be classified under heading 4911, HTSUS, as "Other printed matter".
For exhibit K, Aero states that the product's intended use is unknown. Accordingly, no determination can be made as to whether the printing is incidental to the primary use, or whether its use is determined by the fact of it being printed in accordance with Note 2 to Section VII, HTSUS. Therefore, product associated with sample K cannot be classified under heading 4911, HTSUS.
For exhibits L, M, N, and O, Aero states that the products are intended to bind clothing and to provide certain information to the consumer. Samples L, M, and N are printed with sizes (“small”, “x-large”, and “M”), and sample O is printed with the phrase “mens cap & tee”. In their condition as imported, these products are intended to bind certain articles of clothing together, either so that multiple articles can be sold together, or so that the articles can be displayed for sale in a certain manner. While the fact that the band is printed with a size may be helpful to the ultimate consumer, this use is merely incidental to the band's primary use of binding clothing. See HQ 967463. Therefore, the products represented by samples L, M, N, and O are not properly classified under heading 4911, HTSUS.
For exhibits P and Q, Aero does not clearly identify a use for the products. They simply state that the items are intended to be promotional material. Both samples are too large to be used as a form of jewelry, and appear to be the same size as sample R, which is designed to bind paper materials together. As with sample K, no determination can be made as to whether the printing is incidental to the primary use, or whether its use is determined by the fact of it being printed. Therefore, products associated with samples P and Q cannot be classified under heading 4911, HTSUS.
For exhibit R, Aero states that the product is intended to bind paper materials together, such as press kits, media guides, trade show materials, and medical records. In this way, they function exactly as a traditional rubber band would. Aero asserts that, in addition to being used to bind papers, the products are used to enhance sales and marketing efforts. While the fact that the band is printed with a phrase may be helpful to the ultimate consumer, this use is merely incidental to the band's primary use of binding papers. See HQ 967463. Therefore, the product represented by sample R is not properly classified under heading 4911, HTSUS.
The products associated with exhibits B, C, D, E, F, G, H, I, and J are made of either traditional silicone or PromostretchTM silicone. Some are marked with a word or phrase, and some are not. Each product is sized to fit around either a person's wrist or digit. They are intended to be worn as either bracelets or rings, depending on the size. Aero asserts that these products are properly classified under heading 7117, HTSUS, as imitation jewelry. This office is presently unable to address your request for internal advice on the classification of these products. Section 177.7(b) of Customs regulations (19 C.F.R. §177.7(b)), precludes the Office of Regulations and Rulings from issuing binding classification rulings when the issue to be addressed is pending before the Court of International Trade or the Court of Appeals for the Federal Circuit. The issue involving the classification of a similar product is currently pending before the Court of International Trade in the matter of Premier Novelties, Ltd. v. United States, Court No. 11-cv-00151. Thus, at this juncture, we are precluded from ruling on the classification of the above identified products.
The products identified by exhibit S are made of silicone, and are not printed. Aero states that the intended use of these products is unknown, and that they are properly classified under heading 3926, HTSUS, specifically under subheading 3926.90.99, HTSUS. In accordance with the analysis above, CBP does not dispute this assertion.
HOLDING:
CBP is barred by 19 C.F.R. §177.7(b) from issuing a ruling on the classification of the products represented by exhibits B, C, D, E, F, G, H, I, and J, because the classification of a similar product is currently pending before the Court of International Trade in the matter of Premier Novelties, Ltd. v. United States, Court No. 11-cv-00151. When the issue in that case has been resolved, you may resubmit your request for internal advice with respect to this merchandise.
By application of GRI 1, the products represented by exhibits K, L, M, N, O, P, Q, R, and S are classified in heading 3926, HTSUS, specifically under subheading 3926.90.99, HTSUS, which provides for: “Other articles of plastics and articles of other materials of headings 3901 to 3914: Other: Other”. The column one, general rate of duty is 5.3%.
Duty rates are provided for the internal advice applicant’s convenience and 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.
You are directed to mail this decision to the internal advice applicant, no later than 60 days from the date of this letter. On that date the Office of Regulations and Rulings will make the decision available to CBP personnel, and to the public on the CBP Home Page on the World Wide Web at www.CBP.gov, by means of the Freedom of Information Act, and other public methods of distribution.
Sincerely,
Myles Harmon, Director
Commercial Trade and Facilitation Division