CLA-RR:CTF:TC 967924 RSD
Tariff Nos. 6307.90.9889, 5808.90.0010, 1404.90.00
Liza V. Schaeffer, Esq.
Grunfeld, Desiderio, Lebowitz, Silverman & Klestadt
399 Park Avenue
25th Floor
New York, New York 10022-4877
Re: Tariff classification of scrapbook decorations including tags, tassels, and stickers
Dear Ms. Schaeffer:
This is in response to your letter dated August 25, 2005, on behalf of E.K. Success, Inc. requesting a ruling concerning the tariff classification of tags, tassels, and stickers that are intended for scrapbook decoration under the Harmonized Tariff Schedule of the United States (HTSUS). You submitted samples of the three items under consideration for our review. A telephone conference was conducted with you and members of my staff on November 1, 2005. The samples will be returned to you under a separate cover.
FACTS:
Style RSNRO1
The first product under consideration is a package containing six “circle tag” stickers designated as Style RSNR01. Each circle tag sticker is constructed of a round aluminum frame around a textile decoration with a paperboard backing. An adhesive pad on the paperboard allows it to stick to another surface. A black thread that makes the sticker appear as a tag, hangs from a small hole in each sticker. You indicate that metal aluminum circles account for about 50 percent of the tag’s total content by weight and more than 87 percent of its value. The fabric accounts for about 25 percent of the total content by weight and about 5 percent of the value of the sticker tags. The paperboard accounts for about 20 percent of the total content by weight and about 4 percent of the value of the sticker tags. The black thread accounts for about 5 percent of the total content by weight and about 1.75 percent of the value of the sticker tags.
Style SPRSNR18
The second article under consideration is a single sticker having the appearance of an ornamental tassel. It is designated as Style SPRSNR18. This sticker is constructed of plastic imitation pearls that have been mounted on a resin base. The tassel is made of a 100 percent polyester braid that hangs from the base. There is an adhesive on the back of the base enabling the article to be affixed onto a contact surface. The tassel accounts for approximately 22 percent of the total content of the article by weight and about 49 percent of its value. The resin base accounts for about 65 percent of total content by weight and about 43 percent of the value of the article. The third material, the plastic imitation pearls, accounts for 13 percent of the content by weight and approximately 7 percent of the value of the article.
Style SPINSB01
The third article is referred to as Sticker Style SPINSBO1. It is a sticker pack composed of four-flower stickers, one sheet of transfer paper, and a wooden applicator. All four stickers are constructed from a pressed dried flower that has been sealed between two plastic sheets and that has been backed by adhesive. The stickers are placed on release paper and covered with an additional sheet of plastic to keep the surface clean. The transfer paper contains printed text (e.g. “Happy Birthday, “Make a Wish, “a gift for you”, etc.) that can be rubbed onto the stickers with the wooden applicator.
All of the three products are packaged, imported and sold in heat-sealed plastic bags.
ISSUE:
What is the proper classification in the HTSUS for the above-described products that are intended for use in the hobby known as scrap booking?
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 may then be applied.
The HTSUS provisions under consideration are as follows:
1404 Vegetable products not elsewhere specified or included
1404.90.00 Other.
* * *
3926 Other articles of plastics and article of other materials of heading 3901 to 3914:
3926.90 Other:
Beads, bugles and spangles, not strung (except
temporarily) and not set; articles thereof, not
elsewhere specified or included:
3926.90.35 Other.
* * *
4421 Other articles of wood:
4421.90 Other:
Toothpicks, skewers, candy sticks, ice cream sticks,
tongue depressors, drink mixers and similar
small wares:
4421.90.60 Other.
* * *
4908 Transfers (decalcomanias):
4908.90.00 Other.
* * *
5808 Braids in the piece; ornamental trimmings in the piece,
without embroidery, other than knitted or crocheted;
tassels, pompons and similar articles:
5809.90.00 Other.
* * *
6307 Other made articles, including dress patterns:
6307.90 Other:
Other:
6307.90.98 Other.
* * *
8306 Bells, gongs and the like, nonelectric, of base metal; statuettes
and other ornaments, of base metal; photograph, picture or similar
frames, of base metal; mirrors of base metal; and base metal parts thereof:
8306.29.00 Other.
* * *
The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System. While not legally binding on the contracting parties, and therefore not dispositive, the ENs provide a commentary on the scope of each heading of the Harmonized System and are thus useful in ascertaining the classification of merchandise under the Harmonized System. CBP believes the ENs should always be consulted. See T.D. 89 80, 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).
The first item that we must classify is the “circle tag” stickers, Style RSNOR1. The circle tag stickers are constructed of a round aluminum frame around a textile decoration with a paperboard backing. For an article to be classified in a particular heading, that heading must accurately describe the article. The circle tags consist of multiple materials, a textile decoration, aluminum frame and the paper board backing. These different materials are classified in different headings of the HTSUS. If the circle sticker tags are classified based on the textile decoration, they would be classifiable in heading 6307, HTSUS. However, if the aluminum frame determines the classification of the circle tag stickers, then they would be classified in heading 8306, HTSUS, as statuettes and other ornaments of base metal. Finally, if they are classified based on the paper board backing, then they would be classifiable in heading 4823, HTSUS, as other paper, paper board,...cut to size shape; other articles of paper, paperboard. Because the circle tag stickers are composed of different materials which are classifiable in different headings, they are considered to be composite goods. Since no one heading in the HTSUS fully describes the circle tag stickers, they may not be classified solely on the basis of GRI 1. Consequently, to classify the circle tags we must consider the remaining GRIs.
In pertinent part, GRI 2(b) provides that any reference in a heading to a material or substance shall be taken to include a reference to mixtures or combinations of that material or substance with other materials or substances. However, GRI 2(b) adds that the classification of goods consisting of more than one material or substance shall be according to the principles of GRI 3. Accordingly, GRI 3 is utilized when, by application of GRI 2(b), a good consists of materials or components which are prima facie classifiable under two or more headings. Thus, because the circle tags consist of multiple materials classifiable in multiple headings, in order to classify them, we apply GRI 3.
GRI 3(a) states that when goods are prima facie classifiable under two or more headings, classification shall be effected as follows:
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.
In this instance, we believe that the paperboard backing does not merit equal consideration in classifying the circle tags, and thus we will disregard this material in classifying the circle tags. With respect to the remaining materials, the metal frame and textile material, headings 6307 and 8306, HTSUS, are equally specific in relation to one another. As we cannot classify these goods pursuant to GRI 3(a), we turn to GRI 3(b), which states:
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.
Explanatory Note (EN) VIII to GRI 3(b) states:
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.
There have been several court decisions on "essential character" for purposes of GRI 3(b). These cases have looked primarily to the role of the constituent materials or components in relation to the use of the goods to determine essential character. See, Better Home Plastics Corp. v. United States, 916 F. Supp. 1265 (CIT 1996), affirmed,119 F.3d 969 (Fed. Cir. 1997); and Vista International Packaging Co., v. United States, 19 CIT 868, 890 F. Supp. 1095 (1995). See also, Pillowtex Corp. v. United States, 983 F. Supp. 188 (CIT 1997), affirmed CAFC No. 98-1227 (March 16, 1999). Based on the foregoing, we conclude that in an essential character analysis for purposes of GRI 3(b), the role of the constituent materials or components in relation to the use of the goods is generally of primary importance, but the other factors listed in EN Rule 3(b)(VIII) should also be considered, as applicable.
In this instance, people purchase the circle tag stickers for decorating scrapbooks or other creative projects. Therefore, we believe that the most important aspect of the circle tag stickers is their appearance. Although the metal frames may predominate with respect to the value and weight of the circle sticker tags, we believe that the textile material contributes the most to their visual appeal. The metal component merely forms a border for the decorative textile component to be displayed. It is the textile component that makes up the bulk of the surface area of the product. The textile material provides consumers with an overall impression of the product because it contributes the most in making the product look attractive. In our judgment, the textile’s appearance is the reason why consumers will want to purchase the product so that they can display it in a scrapbook.
We believe that the circle tags are somewhat analogous to a painting with a frame around it. Although a frame may contribute to the appearance of the painting, and it may often weigh more than a painting, people buy a painting for the painting itself and not for the frame around it. In this case, we think that consumers will buy the circle tags because they feel that the textile material will look attractive when they display it in a scrapbook and not for the metal frame around it. Thus, we conclude that the textile material imparts the essential character to the circle tag stickers. Accordingly, we conclude that the circle sticker tags are classified based on the textile material in subheading 6307.90.98, HTSUS, as other made up articles, other.
The second article to be classified is a sticker made from plastic imitation beads with a hanging tassel, Style SPRSNR18. The tassel sticker is also a composite good made up of different materials, which are prima facie classifiable in two or more headings. Although apparently, there is a third material that makes up the tassel sticker, the resin or glue, we believe that this material does not merit equal consideration with the two other materials and can be disregarded in classifying the hanging tassel. The two headings under consideration are heading 5808, HTSUS, which provides for, among other things tassels, pompons and similar articles; and heading 3926, HTSUS, which provides for, among other things, beads, bangles and spangles. This is also an article that is intended for use as a decoration in a scrapbook or a similar type of format. Both the tassel and the plastic beads contribute to the decorative visual appearance of the item and its aesthetic appeal.
As we have already noted the factors that determine 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. GRI 3(c) states: "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."
Based on the examination of the sample and the guidance of the ENs, we conclude that the essential character of the tassel sticker cannot be determined, since neither the textile material nor the plastic beads is predominant. The value of the tassel is somewhat greater than the plastic beads. While function may weigh somewhat in favor of the plastic material, this is not so clear as to be conclusive. The aesthetic factor (marketability) appears relatively equal, as both the look of the tassel and the plastic beads would appear to influence the ultimate purchaser. Looking at all these factors, we are unable to conclude that either material imparts the essential character. Thus, classification of the tassel sticker will be in accordance with GRI 3(c). Subheading 5808.90.00, HTSUS, appears last in numerical order among the subheadings in the HTSUS which equally merit consideration, and thus we conclude that the tassel stickers are classified in heading 5808, HTSUS.
The third and final article that is under consideration is the Inspirables Simply Botanicals Sticker Pack, Style SPINSBO1. The product is composed of four flower stickers, one sheet of transfer paper, and a wooden applicator. In classifying this product, the basic issue that must be resolved is whether the three items contained in the Simply Botanical Sticker Pack should be classified as a set or classified separately as individual articles. EN (X) for GRI 3(b), states that "[f]or the purposes of this Rule, the term 'goods put up in sets for retail sale' shall be taken to mean goods which:
(a) consist of at least two different articles which are, prima facie, classifiable in different headings . . .; (b) consist of products or articles put up together to meet a particular need or carry out a specific activity; and (c) are put up in a manner suitable for sale directly to users without repacking (e.g., in boxes or cases or on boards).
Here, the dried flower sticker pack has three components(the dried flower stickers, the transfer paper and the wooden applicator(which are classified in different headings of the HTSUS. These three items are packaged together for use in carrying out the specific activity of decorating or embellishing scrapbook pages or other creative type projects. We believe that the embellishment and adorning of scrapbooks or other decorative type projects represents a type of undertaking that would qualify as a “specific activity” that is referenced in EN X for GRI 3(b) as among one of criteria to be used for determining whether a collection of articles constitute a set. The fact that there are more rub-on word phrases on the transfer paper than dried flower stickers is irrelevant in determining whether the items in the Simple Botanical Sticker Pack constitute a set. The Simply Botanical Sticker Pack is also marketed and packaged in one plastic package for retail sale directly to the consumer without any repacking. Therefore, we find that it qualifies as a set pursuant to GRI 3(b). See HQ 085577 (January 10, 1990).
GRI 3(b) states that sets are to be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable. As noted previously, under EN (VIII) to GRI 3(b), "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 flower stickers impart the essential character of this set because they function as the primary decorative element of the set. The purpose of the set is embellishing with a botanical theme for use in scrapbooks or other creative projects. The stickers are the dominant articles in terms of use and the reason why one would purchase the set. The transfer paper and the wooden applicator are merely additional features in the craft kit and do not impart the primary appeal of the set. Accordingly, we conclude that the flower sticker pack is classified in heading 1404, HTSUS, as: Vegetable products not elsewhere specified or included. See HQ 959719, dated October 21, 1997.
HOLDING:
The circle sticker tags, Style RSNR01, are classified in heading 6307, HTSUS, as other made up articles, other. They are specifically provided for in subheading 6307.90.9889, HTSUS, as: “Other made articles, including dress patterns: Other:, Other:… Other,” at a general, column one rate of duty of 7 percent ad valorem.
The stickers made from plastic imitation beads with a hanging tassel, Style SPRSNR18, are classified in heading 5808, HTSUS. They are specifically provided for in subheading 5808.90.0010, HTSUS, as: “Braids in the piece; ornamental trimmings in the piece, without embroidery, other than knitted or crocheted; tassels, pompons and similar articles: Other, of cotton; of man-made fibers” at a general, column one rate of duty of 3.9 percent ad valorem.
The Inspirables Simply Botanicals Sticker Pack, Style SPINSBO1, is classified in heading 1404, HTSUS. It is specifically provided for in subheading 1404.90.0000, HTSUS, as: “Vegetable products not elsewhere specified or included: Other,” at a general, column one rate of duty which is Free.
Merchandise classifiable in subheading 5808.90.0010, HTSUS, falls within textile category 229. Quota/visa requirements are no longer applicable for merchandise which is the product of World Trade Organization (WTO) member countries. The textile category number above applies to merchandise produced in non-WTO member-countries. Quota and visa requirements are the result of international agreements that are subject to frequent renegotiations and changes. To obtain the most current information on quota and visa requirements applicable to this merchandise, we suggest you check, close to the time of shipment, the “Textile Status Report for Absolute Quotas” which is available on our web site at www.cbp.gov. For current information regarding possible textile safeguard actions on goods from China and related issues, we refer you to the web site of the Office of Textiles and Apparel of the Department of Commerce at otexa.ita.doc.gov.
Duty rates are provided for requester’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 http://www.usitc.gov/tata/hts/.
Sincerely
Gail Hamill, Chief
Tariff Classification and Marking Branch