CLA–2 OT:RR:CTF:TCM H236523 AMM
William D. Outman, II
Baker & McKenzie, LLP
Two Embarcadero Center, 11th Floor
San Francisco, CA 94111-3802
RE: Reconsideration of Headquarters Ruling Letter H186959; Request for Binding Ruling on Classification of Certain Silicone Bands
Dear Mr. Outman,
This is in response to your request for reconsideration, made on behalf of Aero Rubber Company (Aero), of Headquarters Ruling Letter (HQ) H186959, dated May 10, 2012, which pertains to the classification of eighteen (18) silicone bands, under the Harmonized Tariff Schedule of the United States (HTSUS). You have requested that U.S. Customs and Border Protection (CBP) reconsider its position with regard to thirteen (13) of the goods at issue in HQ H186959. In reaching our decision, we have taken into consideration the samples submitted in connection with HQ H186959, and your submission dated December 13, 2012.
FACTS:
In your submission dated December 13, 2012, you request that CBP reconsider its position with regard to thirteen of the products at issue in HQ H186959. These products were described in the following manner:
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 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.
* * *
See HQ H186959. In that ruling, CBP classified the products represented by Exhibits K, P, Q, and R under 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”. CBP also stated that it was 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 was pending before the Court of International Trade (CIT) in the matter of Premier Novelties, Ltd. v. United States, Court No. 11-cv-00151. See HQ H186959.
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 2014 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(a) 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 (ENs), constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the ENs 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[.]”
EN 71.17 states, in pertinent part:
For the purposes of this heading, the expression imitation jewellery, as defined in Note 11 to this Chapter, is restricted to small objects of personal adornment, such as those listed in paragraph (A) of the Explanatory Note to heading 71.13, e.g., rings, bracelets (other than wrist-watch bracelets), necklaces, ear-rings, cuff-links, etc., …
This is in regard to your request for reconsideration of HQ H186959, which considered the classification of certain silicone bands, entered at the Port of Anchorage. In your submission, dated December 13, 2012, you assert that the nine products represented by Exhibits B, C, D, E, F, G, H, I, and J are properly classified under heading 7117, HTSUS, and that the four products represented by Exhibits K, P, Q, and R are properly classified under heading 4911, HTSUS. You have not specifically objected to the classification of the five products represented by Exhibits L, M, N, O, and S, in heading 3926, HTSUS.
A. Classification of the Products Represented by Exhibits B, C, D, E, F, G, H, I, and J
In HQ H186959, CBP declined to classify the products represented by Exhibits B, C, D, E, F, G, H, I, and J, because Section 177.7(b) of Customs regulations (19 C.F.R. §177.7(b)), precludes CBP from issuing binding classification rulings when the issue to be addressed is pending before the CIT or the Court of Appeals for the Federal Circuit. At the time HQ H186959 was issued, on May 10, 2012, the issue involving the classification of a similar product was pending before the CIT in the matter of Premier Novelties, Ltd. v. United States, Court No. 11-cv-00151. However, this matter was dismissed by the CIT on September 19, 2012. We will consider your request for reconsideration of H186959 to be a prospective ruling request for the classification of the products represented by Exhibits B, C, D, E, F, G, H, I, and J.
According to Note 2(r) of Chapter 39, a product that is properly classified under heading 7117, HTSUS, is precluded from classification under Chapter 39, HTSUS. Thus, we must first consider whether the silicone bands can be classified under heading 7117, HTSUS.
It is well settled that goods are classified in their condition as imported, not what the article is made into after importation, except where classification is dependent on use. See Leonard Levin Co. v. U.S., 27 C.C.P.A. 101, 105-106, C.A.D. 69 (1939). In this case, the importer states that the goods are jewelry because they are used for personal adornment, as bracelets or rings. However, heading 7117, HTSUS, is not a provision for which classification is dependent on use. It is an eo nomine provision, in that it refers to a commodity by a specific name.
Ordinarily, use is not a criteria considered when determining whether merchandise is embraced within an eo nomine provision. J.E. Mamiye & Sons, Inc. v. United States, 509 F. Supp. 1268, 1274 (Cust. Ct. 1980); Pistorino & Co. v. United States, 599 F.2d 444 (C.C.P.A. 1979); F.W. Myers & Co. v. United States, 24 Cust. Ct. 178, 184-185, C.D. 1228 (1950). However, in United States v. Quon Quon Co., 46 C.C.P.A. 70 (1959), the Court of Customs and Patent Appeals stated:
Of all things most likely to help in the determination of the identity of a manufactured article, beyond the appearance factors of size, shape, construction and the like, use is of paramount importance. To hold otherwise would logically require the trial court to rule out evidence of what things actually are every time the collector thinks an article, as he sees it, is specifically named in the tariff act.
Quon Quon, 46 C.C.P.A. at 73.
The Quon Quon case has come to stand for the proposition that use may be considered in determining the identity of an eo nomine provision. Sears Roebuck & Co. v. United States, 790 F. Supp. 299, 302 (Ct. Int’l. Trade 1992); J.E. Mamiye & Sons, Inc., 509 F. Supp. at 1274; Sanji Kobata et al. v. United States, 326 F. Supp. 1397, 1402-1403 (Cust. Ct. 1971); See also HQ H128496, dated March 11, 2011; HQ W968275, dated January 26, 2010; HQ 964444, dated December 18, 2001; HQ 963032, dated July 24, 2000; HQ 957997, dated August 7, 1995.
Use is simply one of the factors to be considered in determining whether merchandise falls within the scope of an eo nomine tariff provision. Myers v. United States, 969 F. Supp. 66, 72 (Ct. Int’l. Trade 1997); See also HQ 964444; HQ 957997. “The Court does not read the [Quon Quon] opinion to support the proposition that certain eo nomine provisions are in fact governed by use.” Myers, 969 F. Supp. at 72.
By reading together Notes 9 and 11 of Chapter 71, HTSUS, an article of imitation jewelry is “any small object of personal adornment” which does not incorporate pearls, precious or semiprecious stones, or precious metals. See also EN 71.17. “Bracelet” and “ring” are listed as an exemplars.
The terms “bracelet”, “ring”, “ornament”, and “adorn” are not defined in the text of the HTSUS or the Explanatory Notes. When, as in this case, a tariff term is not defined by the HTSUS or its legislative history, “the term’s correct meaning is its common meaning.” Mita Copystar Am. v. U.S., 21 F.3d 1079, 1082 (Fed. Cir. 1994). The common meaning of a term used in commerce is presumed to be the same as its commercial meaning. Simod Am. Corp. v. U.S., 872 F.2d 1572, 1576 (Fed. Cir. 1989). To ascertain the common meaning of a term, a court may consult “dictionaries, scientific authorities, and other reliable information sources” and “lexicographic and other materials.” C.J. Tower & Sons v. U.S., 673 F.2d 1268, 1271 (C.C.P.A. 1982); Simod, 872 F.2d at 1576. In their determination of what this “common meaning” encompasses, CBP and the courts may examine the use to which the imported goods are put. See HQ 966880, dated February 9, 2004 (citing Quon Quon).
In Merriam Webster’s Third New International Dictionary (1993), “adorn” is defined as: “1a: to make pleasing or attractive, b: to add to the pleasantness, attractiveness, beauty, or splendor of.” “Bracelet” is defined as: “1: an ornamental band, ring, or chain worn about the wrist, 2: something that in appearance or position suggests a bracelet.” “Ring” is defined as: “2: a circlet usually of precious metal worn especially on the finger.” “Ornament” is defined as “2a: something that lends grace or beauty: a decorative part or addition.” CBP has previously defined the word “adorn” as “to enhance the appearance of, especially with beautiful objects.” See HQ 963999, dated November 21, 2001.
In order to determine whether the articles are in fact “bracelets” or “rings”, CBP must consider the four factors laid out in Quon Quon; namely the size, shape, construction, and use of the articles.
The products represented by Exhibits B, C, D, E, F, G, and H are circular bands with no snaps or other means of closure. They are sized to be slipped over the hand and intended to be worn around the wrist as a bracelet. They are constructed of silicone plastic. Examination of the samples submitted indicates that the products are durable enough to be worn for an extended period of time without being easily broken. As such, when considering the four factors laid out in Quon Quon, the above-identified products are “imitation jewelry”, properly classified under heading 7117, HTSUS. See Notes 9(a) and 11 to Chapter 71, HTSUS. This is consistent with other CBP rulings classifying similar products under this heading. See, e.g., NY N249635, dated January 24, 2014; NY N137695, dated December 28, 2010; NY N127618, dated October 22, 2010; NY N059109, dated May 29, 2009; NY L87117, dated August 30, 2005; NY L84639, dated May 6, 2005; and NY L81482, dated December 22, 2004. Specifically, with regard to classification at the subheading level, the above-identified products are classified under subheading 7117.90.75, which provides for “Imitation jewelry: Other: Other: Valued over 20 cents per dozen pieces or parts: Other: Of plastics.”
The products represented by Exhibits I and J are circular bands with no snaps or other means of closure. They are sized to be slipped over a thumb or finger and intended to be worn as a ring. They are constructed of silicone plastic. Examination of the samples submitted indicates that the products are durable enough to be worn for an extended period of time without being easily broken. As such, when considering the four factors laid out in Quon Quon, the above-identified products are “imitation jewelry”, properly classified under heading 7117, HTSUS. See Notes 9(a) and 11 to Chapter 71, HTSUS. Specifically, with regard to classification at the subheading level, the above-identified products are classified under subheading 7117.90.75, HTSUS.
By virtue of classification under heading 7117, HTSUS, Note 2(r) of Chapter 39 precludes classification of the products represented by Exhibits B, C, D, E, F, G, H, I, and J from classification under heading 3926, HTSUS.
B. Classification of the Products Represented by Exhibits K, P, Q, and R
In HQ H186959, CBP classified the products represented by Exhibits K, P, Q, and R under heading 3926, HTSUS, which provides for other articles of plastic. In your submission, you argue that these products are properly classified under heading 4911, HTSUS, which provides for other printed matter.
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).
As discussed in HQ H186959, 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.
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, rather than Chapter 39, HTSUS. See Note 2 to Section VII, HTSUS. If the products identified by Exhibits K, P, Q, and R, meet this exception, they would be properly classified under heading 4911, HTSUS. In your submission dated December 13, 2012, you present additional facts with regard to the primary use of the above identified products, as well as additional legal justification.
With regard to the product represented by Exhibit K, you state that the product is intended to bind a rolled up t-shirt and a ballcap together, and indicate that the “ALASKA” logo printed on the silicone band is similar to the designs used on the t-shirt and ballcap. Furthermore, you indicate that this product may also be used as a wristband by the ultimate purchaser.
With regard to the products represented by Exhibits P, Q, and R, you state that the products are intended to bind paper materials together, but also to provide long term exposure to the company name for advertising purposes. You assert that the products themselves are advertising materials, promoting the name of the company printed on the band. We note that Exhibit P read “Walt Disney World®”, Exhibit Q includes a website address, specifically “www.navg.co.uk”, and that Exhibit R simply reads “Patient Handbook”.
Furthermore, you cite to certain CBP rulings in support of your position. Specifically, you identify the following rulings: NY 841653, dated June 21, 1989 (finding that “Orangina” plastic communication totems used as free standing table top displays in restaurants and hotels are classified in heading 4911, HTSUS); NY 805469, dated December 28, 1994 (finding that compressed paper cubes bearing a printed advertising message are classified in heading 4911, HTSUS); NY 813232, dated August 18, 1995 (finding that sheets of plastic bearing words or logos to be used as signs are classified under heading 4911, HTSUS); NY J80637, dated February 11, 2003 (a bottle shaped piece of PVC plastic bearing the word “7 Up” fitted to a wire and a suction cup so that it may be placed on a glass surface was classified under heading 4911, HTSUS); NY N003310, dated November 29, 2006 (polyester textile panels bearing company logos or commercial information are classified under heading 4911, HTSUS); and NY N121337, dated September 29, 2010 (finding that a plastic sign which hangs in the aisle of a store and explains “how to choose a padlock” is classified under heading 4911, HTSUS).
According to the General EN to Chapter 49, the 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[.]” In each of the rulings cited above, the sole use of the product at issue is to convey a message, whether that message is utilitarian or for advertising purposes. The material on which the message was written served no other purpose than as a physical conveyance for that message. As such, the above identified rulings are distinguishable.
In 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".
Like the products considered in HQ 967463, the products represented by Exhibits K, P, Q, and R have multiple uses. All four products convey either a utilitarian or advertising message. However, the material on which the message is written serves some additional purpose. For the product described by Exhibit K, that purpose is to bind a rolled up t-shirt and a ballcap together. For the products described by Exhibits P, Q, and R, that purpose is to bind papers together.
With regard to the product represented by Exhibit K, CBP finds that the primary purpose of the band is to bind the t-shirt and ballcap together. These two items are intended to be sold together as a package, and the band holds them together until after the items are purchased as a set. While the band itself may convey a message to that ultimate purchaser, that use is incidental to the use of binding the shirt and hat together for sale. As such, the product represented by Exhibit K is not properly classified under heading 4911, HTSUS, and remains classified under heading 3926, HTSUS.
With regard to the products represented by Exhibits P, Q, and R, CBP finds that the primary purpose of the band is to bind trade or advertising materials together so that the entire package can be delivered to its intended recipient. While the band itself may convey a message to that ultimate recipient, that use is incidental to the use of binding papers together. As such, the products represented by Exhibits P, Q, and R are not properly classified under heading 4911, HTSUS, and remain classified under heading 3926, HTSUS.
HOLDING:
By application of GRI 1, the products represented by Exhibits B, C, D, E, F, G, H, I, and J are classified in heading 7117, HTSUS, specifically under subheading 7117.90.75, which provides for “Imitation jewelry: Other: Other: Valued over 20 cents per dozen pieces or parts: Other: Of plastics.” The column one, general rate of duty is free.
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 your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the internet at www.usitc.gov/tata/hts/.
EFFECT ON OTHER RULINGS:
Headquarters Ruling Letter H186959, dated May 10, 2012, is AFFIRMED.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division