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HQ 966569




April 20, 2004

CLA-2 RR:CR:GC 966569 AML

CATEGORY: CLASSIFICATION

TARIFF NO.: 3926.90.98

Ms. Lisa Thatcher
Avery Dennison
Office Products North America
50 Pointe Drive
Brea, CA 92821

RE: NY F81413 revoked; Plastic identification badges

Dear Ms. Thatcher:

This is in reference to your letter, dated May 19, 2003, to the National Commodity Specialist Division, New York, requesting reconsideration of New York Ruling Letter (“NY”) F81413, dated January 5, 2000, regarding the classification of several styles of plastic identification badges, under the Harmonized Tariff Schedule of the United States (“HTSUS”). Your letter and samples of the articles were forwarded to this office for reply. We have reconsidered the classification determination made in NY F81413 and determined that it is incorrect. This letter sets forth the correct classification of the plastic identification badges.

Pursuant to section 625(c)(1), 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), notice of the proposed revocation of NY F81413 was published on March 10, 2004, in Vol. 38, No. 11 of the Customs Bulletin. No comments were received in response to this notice.

FACTS:

The articles under consideration are plastic identification badges. They were described in NY F81413 as follows: 1. Part #77711 74520 is a badge made of a neck hanging plastic badge holder with heavyweight cardstock insert, 4” x 3” in size, valued over 20 cents per dozen pieces.

2. Part #77711 74536 is a badge made of a plastic badge holder with a metal clip with heavyweight cardstock insert, 4” x 3” in size, valued over 20 cents per dozen pieces.

3. Part #77711 74540 is a badge made of a plastic badge holder with a metal pin with heavyweight cardstock insert, 4” x 3” in size, valued over 20 cents per dozen pieces.

After determining that “the essential character of the above-described badges is the plastic holder,” NY F81413 held that the articles were classified under subheading 7117.90.75, HTSUS, which provides for imitation jewelry: other: other: valued over 20 cents per dozen pieces or parts: other: of plastics.

ISSUE:

Whether the subject merchandise is classifiable under heading 3926, HTSUS, which provides for other articles of plastics; or under heading 7117, HTSUS, which provides for imitation jewelry?

LAW AND ANALYSIS:

Merchandise is classifiable under the Harmonized Tariff Schedule of the United States (“HTSUS”) in accordance with the General Rules of Interpretation (“GRIs”). GRI 1 states, in part, that for legal purposes, classification shall be determined according to the terms of the headings and any relative section or chapter notes, and provided the headings or notes do not require otherwise, according to the remaining GRIs, applied sequentially. The GRIs and the Additional U.S. Rules of Interpretation are part of the HTSUS and are to be considered statutory provisions of law.

The HTSUS provisions under consideration are as follows:

3926 Other articles of plastics and articles of other materials of headings 3901 to 3914: 3926.90 Other:
3926.90.98 Other.
7117 Imitation jewelry:
7117.90 Other:
Other:
Valued not over 20 cents per dozen pieces or parts:
Other:
7117.90.75 Of plastics.

Subheading 3926.90.98, HTSUS, is a so-called "basket" provision within Chapter 39, in which classification "is appropriate only when there is no tariff category that covers the merchandise more specifically." (Apex Universal, Inc., v. United States, 22 C.I.T. 465 (1998).) Further, the ENs to Chapter 39 exclude “imitation jewellery of heading 7117” from classification therein. Therefore, we are first addressing the competing provision within Chapter 71 that was determined to be appropriate for classification in NY F81413. Only if classification in heading 7117, HTSUS, is precluded will we address classification under heading 3926, HTSUS.

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. Customs believes the ENs should always be consulted. See T.D. 89-80, published in the Federal Register August 23, 1989 (54 FR 35127, 35128).

Note 11 to Chapter 71 provides, in pertinent part, that “for the purposes of heading 7117, the expression “imitation jewellery” means articles of jewellery within the meaning of paragraph (a) of Note 9 above.” Note 9(a) provides in pertinent part that:
the expression “articles of jewellery” means:

(a) Any small objects of personal adornment (gem-set or not) (for example, rings, bracelets, necklaces, brooches, earrings, watchchains, fobs, pendants, tiepins, cufflinks, dressstuds, religious or other medals and insignia) . . .

The ENs to heading 7117 provide, in pertinent part, that:

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 7113, e.g., rings, bracelets (other than wristwatch bracelets), necklaces, earrings, cufflinks, etc., but not including buttons and other articles of heading 96.06, or dress combs, hairslides or the like, and hairpins of heading 96.15 (bold emphasis in original) . . .

No argument has been presented nor do we believe that the articles at issue are designed or intended to be articles of personal adornment. Rather, the articles are designed and used functionally – they are used and reused (by simply replacing the paper inserts) to display the name of the wearer at a convention, meeting or other function. That is, the paramount function of the articles is to temporarily display the name of the wearer on an article of clothing.

We conclude, based upon consideration of the provisions of heading 7117, HTSUS, the Chapter Notes and the ENs thereto, that the articles are not classified under heading 7117, HTSUS.

An article is to be classified according to its condition as imported. See, XTC Products, Inc. v. United States, 771 F.Supp. 401, 405 (1991). See also, United States v. Citroen, 223 U.S. 407 (1911). In their condition as imported, the plastic identification badges are articles of molded plastic. In accordance with GRI 1, the articles are classified under heading 3926, HTSUS, which provides for other articles of plastics.

This conclusion comports in part with a prior ruling: in Headquarters Ruling Letter (“HQ”) 965072, dated September 19, 2001, we considered and rejected classification under heading 7117, HTSUS, and classified a plastic sleeve suspended from a textile lanyard with a swivel hook (laminated to enclose the information to be displayed and designed for use at a specific, one-time event) under heading 6307, HTSUS.

HOLDING:

The plastic identification badges (style numbers 77711 74520, 77711 74536 and 77711 74540) are classified under subheading 3926.90.98, HTSUS, which provides for other articles of plastics, other, other.

EFFECT ON OTHER RULINGS:

NY F81413 is REVOKED. In accordance with 19 U.S.C. §1625 (c), this ruling will become effective sixty (60) days after its publication in the Customs Bulletin.

Sincerely,

Myles B. Harmon, Director

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