CLA-2OT:RR:CTF:TCM: H250628ERB
Mr. Eric Wilson
Godfrey Kahn S.C.
One East Main Street, Suite 500
P.O. Box 2719
Madison, WI 53701-2719
RE: Revocation of NY N239592 and N246346; Tariff classification of Fashion Angels “Tapeffiti,” (Item #11728)
Dear Mr. Wilson:
U.S. Customs and Border Protection (CBP) issued your client, M&G Partners, LLP d/b/a Fashion Angels Enterprises (Fashion Angels), New York Ruling Letter (NY) N239592, dated April 9, 2013, in response to your client’s binding ruling request, dated March 5, 2013. The request concerned the tariff classification of the “Tapeffiti” product, (Item #11728). Subsequent to the issuance of NY N239592, CBP became aware of errors in the product description in Fashion Angels’ ruling request submission. CBP issued NY N246346, dated September 20, 2013 as a correction. Pursuant to 19 C.F.R. §1625(c) and 19 C.F.R. § 177.12(b), Customs is to follow a notice and comment procedure if conflicting or inconsistent rulings exist. We have reviewed NY N239592, and find it to be in error with respect to the classification of the Tapeffiti, which is described in detail herein, and in conflict with NY N246346. As such, we are revoking NY N239592 and NY N246346, pursuant to the reasoning contained herein.
Pursuant to Section 625(c), Tariff Act of 1930 (19 U.S.C. 1625(c)), as amended by Section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act (Pub. L. 103-182, 107 Stat. 2057), this notice advises interested parties that CBP is revoking two rulings concerning the classification of Fashion Angels’ “Tapeffiti” (Item #11728), under the HTSUS. Similarly, CBP is revoking any treatment previously accorded by it to substantially identical transactions. Notice of the proposed revocation was published March 4, 2015, Volume 49, Number 9, of the Customs Bulletin. No comments were received in response to the proposed notice.
FACTS:
NY N239592, dated April 9, 2013 stated the following regarding the subject merchandise:
The sample submitted, “Tapeffiti”, consists of six plastic dispensers with decal tape measuring approximately 9 feet each and packaged together for retail sale. Tapeffiti is a decorative decal tape designed for children that comes with a variety of repetitive printed images including pandas, gems, stars, daisies, robots, dolls, cupcakes, candies, zebras and cheetahs. Tapeffiti can be used to decorate scrapbooks, notebooks, folders, bracelets, headbands, sketchbooks, portfolios, journals, picture frames and tote bags. The sample will be retained for training purposes.
The applicable subheading for the “Tapeffiti”, will be 4908.10.0000, Harmonized Tariff Schedule of the United States (HTSUS), which provides for Transfers (decalcomanias): Transfers (decalcomanias), vitrifiable. The rate of duty will be Free.
NY N246346, dated September 20, 2013, stated the following:
This replaces Ruling Number N239592, dated April 9, 2013, which contained an error in the product description. The merchandise was described as decal tape when it is actually pressure sensitive plastic tape. A complete corrected ruling follows.
The sample submitted with your request consists of six plastic dispensers on a retail card, each dispenser containing approximately 9 feet of decorative pressure sensitive plastic tape. This tape, marked as “Tapeffiti” is printed with repetitive images such as pandas, … and candies. It is marketed for use to decorate scrapbooks, …and tote bags. The sample will be retained for training purposes.
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The Tapeffiti tape does not contain printed images that will be transferred to another surface, leaving a plastic or other backing behind. The Tapeffiti consists of pressure sensitive plastic tape printed with decorative images that remain on the tape. The tape is designed to be cut into sections and the entire decorative tape segment is applied to another product to decorate that product. Legal Note 2 of Section VII of the 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.” Since the pressure sensitive tape is provided for in heading 3919, it remains classified in heading 3919 rather than in chapter 49 even when printed and even when the printing is not merely incidental to the primary function of the goods.
Fashion Angels argues that the subject merchandise was classified correctly in the original ruling, NY N239592.
ISSUE:
Whether the subject Tapeffiti is classified as self-adhesive tape of heading 3919, HTSUS, or as a transfer of heading 4908, HTSUS.
LAW AND ANALYSIS:
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 GRIs may then be applied.
The HTSUS provisions under consideration in this case are as follows:
3919 Self-adhesive plates, sheets, film, foil, tape, strip and other flat shapes, of plastics, whether or not in rolls:
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4908 Transfers (decalcomanias):
Legal Note 2 to Section VII, which covers Chapter 39, states the following:
2. 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.
In understanding the language of the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System, which constitute the official interpretation of the Harmonized System. The ENs, although not dispositive or legally binding, provides a commentary on the scope of each heading, and are generally indicative of the proper interpretation of the HTSUS. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
The EN 39.19 provides the following:
This heading covers all self-adhesive flat shapes of plastics, whether or not in rolls, other than floor, wall or ceiling covers of heading 39.18. The heading is, however, limited to flat shapes which are pressure-sensitive, i.e., which at room temperature, without wetting or other addition, are permanently tacky (on one or both sides) and which firmly adhere to a variety of dissimilar surfaces upon mere contact, without the need for more than finger or hand pressure.
It should be noted that this heading includes articles printed with motifs, characters or pictorial representations, which are not merely incidental to the primary use of the goods (see Note 2 to Section VII)
The General EN to chapter 49 states, in relevant part, the following:
Goods of heading 39.18, 39.19, 48.14 or 48.21 are also excluded from this chapter, even if they are printed with motifs, characters or pictorial representations, which are not merely incidental to the primary use of the goods.
It continues:
In addition to the more common forms of printed products…this Chapter covers such articles as: printed transfers (decalcomanias); …
The EN 49.08 provides the following:
Transfers (declacomanias) consist of pictures, designs or lettering in single or multiple colours, lithographed or otherwise printed on absorbent, lightweight paper (or sometimes thin transparent sheeting of plastics), coated with a preparation, such as of starch and gum, to receive the imprint which is itself coated with an adhesive. This paper is often backed with a supporting paper of heavier quality. The designs are sometimes printed against a background of metal leaf.
When the printed paper is moistened and applied with slight pressure to a permanent surface (e.g., glass, pottery, wood, metal, stone or paper), the coating printed with the picture, etc., is transferred to the permanent surface.
Transfers may be used for decoration or utility purposes, e.g., for decorating pottery or glass, or for marking various articles such as vehicles, machines and instruments.
Transfers produced and supplied mainly for the amusement of children are also covered by this heading, as are also articles such as embroidery or hosier transfers which consist of papers on which designs are outlined in pigment which is transferred, usually to a textile surface, by pressure with a heated smoothing iron.
Therefore, if the Tapeffiti product meets the terms of heading 3919, HTSUS, it is excluded from classification in chapter 49.
Tapeffiti, is a roll of self-adhesive plastic strip, printed on one side with repetitive images including depictions of animals, such as pandas, or patterns, such as houndstooth. The opposite side is permanently tacky and is thus capable of being stuck to various surfaces at room temperature. A user will unroll the plastic strip and cut it to a desired length. The user needs no more than finger pressure to adhere the tape onto a surface as decoration, without any additional method of transfer (e.g. water or heat). Further, the image is never transferred from the tape to a surface because there is no temporary backing material as the image is permanently fixed on the tape. If the tape is removed, the image is also removed because it is part of the tape. It therefore meets the terms of heading 3919, HTSUS, explained in the ENs to 39.19, and thus is excluded from classification in chapter 49, under the general EN to that chapter.
If arguendo, the merchandise is not excluded from classification in Chapter 49, it still does not meet the terms of heading 4908, HTSUS. In Headquarters Ruling (HQ) 965703, dated August 13, 2002, CBP cited the Merrian-Webster’s Collegiate Dictionary, 10th Ed. which defined “decalcomania” as: the art or process of transferring pictures and designs from specially prepared paper (as to glass).” There, in classifying temporary tattoos, CBP ruled that a product that transfers an image with moisture and pressure from paper to skin is classified in heading 4908, HTSUS, as a “decal.” See also, NY 884872, dated April 22, 1993 (classifying temporary tattoos, where the user places the picture face down on skin, rubs firmly with damp cloth or sponge, and peels away the backing paper after the image as been transferred onto the surface and off of the backing paper, as a “decal” under heading 4908, HTSUS); and see, HQ 961550, dated July 17, 2001, where CBP cited The Dictionary of Paper, 5th Edition, edited by Michael Kouris (1996), which defines decalcomania and decalcomania paper as follows:
A process of transferring printed designs to porcelain, wood, glass, marble, etc. It consists usually in gumming the paper or other film bearing the colored picture onto the object and them [sic] removing the paper with warm water, the colored picture remaining.
CBP has also consistently classified products as decals of heading 4908, HTSUS, when the image is transferred to a surface via rubbing. In NY G86280, dated January 22, 2001, CBP classified a “Rub’n Wear Glitter Body Art Transfers” under heading 4908, HTSUS, wherein the directions instruct “users are to remove the release paper, place the printed side of the acetate onto the skin, and rub with a fingernail tip. This will cause the design to be transferred onto the skin. The resulting temporary tattoo can subsequently be removed with adhesive tape, baby oil or petroleum jelly.” Finally, in NY K85599, dated May 7, 2004, CBP stated that a “Rub-Off Egg Tattoo” which instructed users to place a selected portion of the printed film on the surface of an [Easter] egg and rub it with a popsicle stick or other tool, whereupon the image is transferred to an egg as decoration, was classified in heading 4908, HTSUS, as a decal. But a second item, “Fuzzy Stickers” made of flocked, pressure-sensitive vinyl film whereby the flocked vinyl shapes were meant to be peeled off their paper backing and applied to eggs as decoration, were classified in heading 3919, HTSUS, as a sticker. The subject merchandise does not allow for any transfer of its images. It does not use water or heat for its application. It does not have a temporary backing material. It is simply a plastic tape containing repetitive designs. Hence, it is properly classified under subheading 3919.90.50, HTSUS, which provides for, “self-adhesive sheets of plastics.”
Lastly, NY N032870, dated August 8, 2008, classifying decal transfer dispensers in heading 4908, HTSUS, is not relevant here. The instant merchandise is neither a dispenser, nor a decal transfer tool as explained above.
HOLDING
By application of GRI 1 the subject “Tapeffiti” Item #11728 is provided for in heading 3919, HTSUS. It is specifically provided for under subheading 3919.10.20, HTSUS, which provides for, “Self-adhesive plates, sheets, film, foil, tape, strip and other flat shapes, of plastics, whether or not in rolls: In rolls of a width not exceeding 20 cm: Other: Other.” The column one, general rate of duty is 5.8% ad valorem.
Duty rates are provided for your convenience and subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided at www.usitc.gov
EFFECT ON OTHER RULINGS
NY N239592, dated April 9, 2013 and NY N246346, dated September 20, 2013, are hereby REVOKED.
In accordance with 19 U.S.C. § 1625(c), this ruling will become effective 60 days after its publication in the Customs Bulletin.
Myles B. Harmon, Director
Commercial and Trade Facilitation Division