HQ 0955565 - Protest 3001-93-100625; Placards; Pressure Sensitive Printed Plastic Sign Plates for Civil Aircraft; Parts and Accessories; Articles of Plastic; Civil Aircraft Agreement ("CAA"); Section XVII, Note 2(b); Section VII, Note 2; ENs 39.19 and 39.26; HQ 953461; NY 883004 - United States International Trade Commision Rulings

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HQ 955565

April 5, 1994

CLA-2 CO:R:C:M 955565 RFA

CATEGORY: CLASSIFICATION

TARIFF NO.: 3919.90.50

District Director of Customs
1000 Second Avenue
Room 2200
Seattle, WA 98104

RE: Protest 3001-93-100625; Placards; Pressure Sensitive Printed Plastic Sign Plates for Civil Aircraft; Parts and Accessories; Articles of Plastic; Civil Aircraft Agreement ("CAA"); Section XVII, Note 2(b); Section VII, Note 2; ENs 39.19 and 39.26; HQ 953461; NY 883004

Dear District Director:

The following is our decision regarding Protest 3001-93- 100625, which concerns the classification of placards under the Harmonized Tariff Schedule of the United States (HTSUS). The entries of the subject merchandise were liquidated on June 25, and July 2, 9, and 16, 1993. The protest was timely filed on September 16, 1993.

FACTS:

The subject merchandise is 4 placards which are sheets of plastics, in the form of squares or rectangles with rounded edges. All are flat, and have an adhesive coating on the reverse surface, protected by peel-off paper backings. The fronts are printed with figures, symbols and/or words. One sign depicts a figure dropping waste into a receptacle, with the red slash within a circle symbol for "no". The second shows the figure of a man, a woman, a lavatory sink, and the lit cigarette with the red slash within a circle symbol for "no smoking". The third sign is imprinted with an arrow and the words, "Please Lock Door." The fourth sign contains printed instructions for resetting the water heater-overheat switch.

The merchandise was entered under subheading 8310.00.00, HTSUS, as sign plates, name plates and similar plates, of base metal. The entries were liquidated under subheading 8310.00.00, HTSUS. At the time of the protest, the protestant informed Customs that the placards are self-adhesive sign plates made of plastic and not of base metal.

Classification of the merchandise under subheading 8803.30.00, HTSUS, as parts of civil aircraft, and under subheading 3926.90.90, HTSUS, as other articles of plastic, and under subheading 3919.90.50, HTSUS, as self-adhesive plates, sheets and other flat shapes, of plastic, are also under consideration.

The subheadings under consideration are as follows:

8803.30.00: Parts of goods of heading 8801 or 8802: [o]ther parts of airplanes or helicopters . . . .

Goods classifiable under this provision have a general, column one free rate of duty.

8310.00.00 Sign plates, name plates, address plates and similar plates, numbers, letters and other symbols, and parts thereof, of base metal, excluding those of heading 9405. . . .

Goods classifiable under this provision have a general, column one rate of duty of 3.8 percent ad valorem.

3926.90.90 Other articles of plastics and articles of other materials of headings 3901 to 3914: [o]ther: [o]ther . . . .

Goods classifiable under this provision have a general, column one rate of duty of 5.3 percent ad valorem.

3919.90.50 Self-adhesive plates, sheets, film, foil, tape, strip and other flat shapes, of plastics, whether or not in rolls: [o]ther: [o]ther . . . .

Goods classifiable under this provision have a general, column one rate of duty of 5.8 percent ad valorem.

ISSUE:

Whether the placards are classifiable as parts of civil aircraft, or as self-adhesive plates, sheets and other flat shapes, of plastic, or as other articles of plastic, eligible for duty-free treatment under Civil Aircraft Agreement ("CAA"), under the HTSUS?

LAW AND ANALYSIS:

Classification of merchandise under the HTSUS is in accordance with the General Rules of Interpretation (GRI's), taken in order. GRI 1 provides that classification shall be determined according to the terms of the headings and any relative section or chapter notes.

The protestant contends that the subject merchandise will be used as spare parts for civil aircraft lavatories and therefore should be free of duty under the CAA, either as parts of aircraft in heading 8803, HTSUS, or as other articles of plastics in heading 3926, HTSUS. The provisions for aircraft are under section XVII of the HTSUS. Section XVII, Note 2(b) states as follows: "The expressions 'parts' and 'parts and accessories' do not apply to the following articles, whether or not they are identifiable as for the goods of this section: [p]arts of general use, as defined in note 2 to section XV, of base metal (section XV) or similar goods of plastics (chapter 39)".

According to the information provided, the placards are goods of plastics which are provided for in chapter 39. Therefore, based upon the application of Section XVII, Note 2(b), classification of the placards under heading 8803, HTSUS, is precluded.

As an alternative to classification under heading 8803, HTSUS, the protestant argues that the placards are classifiable under heading 3926, HTSUS, as other articles of plastics. The Harmonized Commodity Description and Coding System Explanatory Notes (EN) constitute the Customs Cooperation Council's official interpretation of the HTSUS. While not legally binding, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See T.D. 89-90, 54 Fed.Reg. 35127, 35128 (August 23, 1989). EN 39.26, page 575, states as follows: "This heading covers articles, not elsewhere specified or included, of plastics."

Therefore, in order for merchandise to be classifiable under heading 3926, HTSUS, it must not be specified or included elsewhere in chapter 39. Section VII, Note 2 states as follows: "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."

Furthermore, EN 39.19, page 571, states as follows:

This heading covers all self-adhesive flat shapes of plastics, whether or not in rolls, other than floor, wall or ceiling coverings 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).

In NY 883004, dated March 16, 1993, Customs held that a plastic label printed with information to identify the buttons on a clock radio was classifiable under subheading 3919.90.50, HTSUS.

The subject placards are all self-adhesive flat shapes of plastics which are pressure-sensitive. Each of the four placards are printed with figures, symbols and/or words. Based upon Note 2 to Section VII, NY 883004 and the guidance of EN 39.19, we find that the subject placards are specifically provided for under heading 3919, HTSUS. Therefore, classification of the merchandise as other articles of plastics under heading 3926, HTSUS, is precluded.

The protestant claims that the placards are eligible for duty-free treatment under the CAA. To be eligible for these benefits, it is important to note that in addition to the certification of use required under section 10.183(d) of the Customs Regulations [19 CFR 10.183(d)], and the approval for such use by the appropriate airworthiness authority, an imported article must be classifiable in a heading under the HTSUS listed in the United States Annex to the Agreement on Trade in Civil Aircraft. Heading 3919, HTSUS is not listed in the Annex. This means the negotiators did not intend to include goods, such as self-adhesive plastic signs or placards, within the scope of the CAA. See HQ 953461 (June 4, 1993). Therefore, the placards are not eligible for duty-free treatment under the CAA.

HOLDING:

The placards are classifiable under subheading 3919.90.50, HTSUS, as other self-adhesive flat shapes of plastics. Because the rate of duty under the classification indicated above is more than the liquidated rate, you should deny the protest in full.

In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, this decision, together with the Customs Form 19, should be mailed by your office to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with the decision must be accomplished prior to mailing of the decision. Sixty days from the date of the decision the Office of Regulations and Rulings will take steps to make the decision available to Customs personnel via the Customs Rulings Module in ACS and the public via the Diskette Subscription Service, Lexis, Freedom of Information Act and other public access channels.

Sincerely,

John Durant, Director

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