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HQ 967882




December 5, 2005

CLA-2: RR:CTF:TCM 967882 ASM

CATEGORY: CLASSIFICATION

TARIFF NO.: 4911.99.8000; 4823.90.6600; 6307.90.9889; 3926.40.0000

Liza V. Schaeffer
Grunfeld, Desiderio, Lebowitz, Silverman & Klestadt LLP 399 Park Avenue
25th Floor
New York, NY 10022-4877

RE: Classification of Decorative Stickers

Dear Ms. Schaeffer:

This is in response to your request dated July 25, 2005, made on behalf of your client, EK Success, Inc., regarding the classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) of various decorative stickers. Samples of the merchandise were provided to Customs and Border Protection (CBP) and examined by this office. In addition, we participated in a telephone conference call with you on November 30, 2005, and reviewed your written submission dated November 30, 2005.

FACTS:

This ruling request concerns the classification of various decorative stickers identified as follows: Style STSAL01, Style JJDC006C, Style HDJB02, Style MLBJB009, Style SP-JBLG-021.

Style STSAL01 consists of fifty individual stickers of flat metallized plastic shapes that are retail packaged in a clear plastic bag. Each plastic shape approximates a circle or square and is printed with a letter of the alphabet. A circular piece of adhesive foam tape, which measures 1/8 inch in thickness, is attached to the back of each plastic shape. The adhesive foam is double sided tape that allows it to stick to the plastic shape and any other surface. Due to the thickness of the foam tape, the piece of plastic does not lay flat on the surface of the material to which it will be fastened.

Styles JJDC006C and HDJB02 consist of one sticker each constructed of layers of paper or paperboard, cut and pasted into the three dimensional shape of a motorcycle. Both styles consist of different textured (embossed) and colored paper. Each is separately packaged for retail sale in a clear plastic bag. Style HDJB02 has the “Harley-Davidson”® logo printed on the motorcycle.

Style MLBJB009 consists of fifteen stickers, packaged together for retail sale in a clear plastic bag, which represents articles associated with a major league baseball team. Three of the stickers are mainly constructed of fabric, i.e., one baseball helmet sticker printed with an “S” and two team jersey stickers printed with a team logo and having stitching and 6 small beads attached to approximate buttons. There is a three dimensional paper sticker with a team logo printed on it, two “ticket” stickers with printed text, and three baseballs with red stitching printed on each. Two baseball bats are made of flat pressure sensitive plastics with a team logo printed on each one. There is also a three dimensional baseball mitt and two athletic shoes constructed of layered plastic material and black thread.

Style SP-JBLG-021 consists of nine stickers associated with a crypt theme that are packaged together for retail sale in a clear plastic bag. The largest sticker depicts a mummy emerging from a tomb and is constructed of plastic, paper, fabric, and yarn. The plastic tomb is etched with a black printed design. The mummy has also been printed with black detail to give the appearance of bandages. Thread has been glued to the tomb to create a spider web effect and a spider constructed of fabric and plastic is attached to the web. The remaining stickers are made of paper and/or plastic and consist of two bones, two roaches, one beetle, one skull, one scorpion, and one snake.

ISSUE:

What is the proper classification of the merchandise under the HTSUSA?

LAW AND ANALYSIS:

Classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) 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 heading and legal notes do not otherwise require, the remaining GRI may then be applied. 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 Harmonized Tariff Schedule and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

In classifying the styles at issue, we note that one or more of the HTSUSA provisions may be applicable:

3919 Self- adhesive plates, sheets, film, foil, tape, strip and other flat shapes, of plastics, whether or not in rolls:

3919.90 Other:

Other articles of plastics and articles of other materials of headings 3901 to 3914:

3926.90 Other:

Other paper, paperboard, cellulose wadding and webs of cellulose fibers, cut to size or shape; other articles of paper pulp, paper, paperboard, cellulose wadding or webs of cellulose fibers:

4823.90 Other:

Other printed matter, including printed pictures and photographs:

Other:

Other made up articles, including dress patterns:

Other:

Style STSAL01

The plastic alphabet stickers, identified as Style STSAL01, have foam tape adhered to the back of each sticker which creates a three dimensional appearance. Although pressure sensitive flat shapes of plastic are classifiable in heading 3919, HTSUSA, which provides for “Self-adhesive plates, sheets, film, foil, tape, strip and other flat shapes, of plastics, whether or not in rolls”, the EN’s to heading 3919, HTSUSA, specifically indicate that this heading is “ . . . 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 . . . “. Inasmuch as these articles have an enhanced three-dimensional appearance due to the thick foam tape, they do not qualify as “flat shapes” within the meaning of heading 3919, HTSUSA. Heading 3926, HTSUSA, provides, in pertinent part, for “Other articles of plastics . . . ”, but Legal Note 2 to Section VII precludes classification in heading 3926, HTSUSA, 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.

Since the printed alphabet on the face of the stickers is not incidental and provides the primary use of the goods, we find that the subject alphabet stickers are not classifiable as other articles of plastic in heading 3926, HTSUSA. Thus, in accordance with Legal Note 2 to Section VII, we must next consider classification in Chapter 49, HTSUSA, which includes pictures and other products of the printing industry. The General EN’s to Chapter 49 state that “. . . 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.” These articles are printed with stylized letters of the alphabet which convey the essential nature and use of the goods.

In view of the foregoing, we find that the plastic alphabet stickers, identified as Style STSAL01, are classified as “Other printed matter, . . . “ in heading 4911, HTSUSA. This decision is supported by Headquarters Ruling Letter (HQ) 087363, dated August 14, 1990, wherein plastic stickers depicting Christmas scenes that had been heat sealed over a foam inner layer with adhesive backing were found to be classifiable as “printed pictures” in heading 4911, HTSUSA.

Styles JJDC006C and HDJB02

Style JJDC006C and Style HDJB02 each have one individually packaged motorcycle that is comprised of layers of embossed (textured) paper, paperboard, and colored paper, as well as a single piece of foam double sided stick tape and, on Style HDJB02, a component piece constructed of paper and foam plastic. These layered components give each motorcycle a three dimensional appearance. In addition Style HDJB02 has been printed with the trade name of a motorcycle company that is so small, it is barely legible.

In this instance, it is not possible to classify Styles JJDC006C and HDJB02 in accordance with GRI 1 pursuant to the terms of the headings and relevant Section or Chapter Notes. Furthermore, these styles are constructed of more than one component material, which includes, plastic, paper, paperboard, and self-adhesive foam tape. GRI 2(a) is not applicable because the article is not incomplete, unfinished, unassembled, or disassembled. GRI 2(b) specifically notes that the classification of goods consisting of more than one material or substance shall be according to the principles of GRI 3. Each sticker style may be classified in the following headings: Heading 3926, HTSUSA, which provides for “Other articles of plastics and articles of other materials of headings 3901 to 3914”; heading 4823, HTSUSA, which provides for “ . . .; other articles of paper pulp, paper, paperboard, cellulose wadding or webs of cellulose fibers”; or heading 4911, HTSUSA, which provides for “Other printed matter . . . “. When goods are, prima facie, classifiable in two or more headings, they must be classified in accordance with GRI 3:

(a) 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.

(b) 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.

In this case, each of the headings refers to only part of the materials contained in each article. Pursuant to GRI 3(a), we must consider the headings equally specific in relation to the goods. Accordingly, the goods are classifiable pursuant to GRI 3(b) as if they consisted of the material or component that gives them their essential character. The EN to GRI 3(b) states:

(VII) In all these cases the goods 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.

(VIII) 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 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); Mita Copystar America, Inc. v. United States, 966 F. Supp. 1245 (CIT 1997), rehearing denied, 994 F. Supp. 393 (CIT 1998), 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 171 F. 3d 1370 (Fed. Cir. 1999).

Clearly, the detailed paper rendering of the motorcycle conveys the essential character for each of these styles. As such, these articles are properly classified in accordance with the paper components.

The General EN’s to Chapter 49 state that “. . . 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.” Although Chapter 49, Note 2, states that the use of “embossed” paper does constitute “printing” within the meaning of the tariff, we note that there is only a very small amount of printing and embossing on Style HDJB02 and Style JJDC006C. Thus, the printing does not convey the essential nature and use of the goods and neither of these articles would be classifiable as “Other printed matter . . .” in heading 4911, HTSUSA. However, the General EN’s to Chapter 49 further note that articles of paper or paperboard, where printing is merely incidental to their primary use, fall in Chapter 48. In both Style HDJB02 and JJDC006C, the detailed rendering of the motorcycle is conveyed by the layers of finely cut and shaped paper/paperboard. Accordingly, Styles JJDC006C and Style HDJB02 are properly classified as “ . . . ; other articles of paper pulp, paper, paperboard” in heading 4823, HTSUSA.

Style MLBJB009

Style MLBJB009 is a set of fifteen stickers associated with a major league baseball team with components of fabric, plastic, paper, and foam double-sided stick tape. In this instance, it is not possible to classify Style MLBJB009 in accordance with GRI 1 pursuant to the terms of the headings and relevant Section or Chapter Notes. Furthermore, this style is constructed of more than one component material, which includes, plastic, paper, fabric, and self-adhesive foam tape. GRI 2(a) is not applicable because the article is not incomplete, unfinished, unassembled, or disassembled. GRI 2(b) specifically notes that the classification of goods consisting of more than one material or substance shall be according to the principles of GRI 3. Each sticker contains multiple components and therefore the following headings must be considered in classifying the stickers: Heading 3926, HTSUSA, which provides for “Other articles of plastics and articles of other materials of headings 3901 to 3914”; heading 4823, HTSUSA, which provides for “ . . .; other articles of paper pulp, paper, paperboard, cellulose wadding or webs of cellulose fibers”; and heading 6307, HTSUSA, which provides for “Other made up articles, including dress patterns”.

As we have previously noted, when goods are, prima facie, classifiable in two or more headings, they must be classified in accordance with GRI 3. In this case, each of the headings refers to only part of the items contained in each article. Thus, pursuant to GRI 3(a), we must consider the headings equally specific in relation to the goods.

In accordance with GRI 3(b), we find that the fifteen stickers are properly classified as a “set” because they consist of goods put up in a set for retail sale which are, prima facie, classifiable in different headings and have been put up in a plastic bag suitable for sale directly to users without repacking. Furthermore, each set consist of articles that are put up together to carry out a specific activity because each component serves to impart a baseball theme. All fifteen elements are designed to be used together to form an attractive display, e.g., for use in such activities as “scrapbooking”. This determination is consistent with our decision in HQ 965295, dated September 11, 2002, where retail packaged goods consisting of a 48-page instruction book and four specialized paper punches were found to be a “set” within the meaning of GRI 3(b) as “goods put up in sets for retail sale”.

Accordingly, Style MLBJB009 is classifiable pursuant to GRI 3(b) as if it consisted of the component that imparts its essential character. In examining each of the articles in this set, we note that the team jerseys are the largest items in the set and have been printed with team logos. We further find that the two team jerseys, which are primarily constructed of textile, provide the essential character to this set. In your second written submission dated November 30, 2005, you agree that the sticker-packet Style MLBJB009 is properly classified as a set under GRI 3(b) and that the team jerseys impart the essential character to the set. However, you assert that it is the printing on the team jerseys which provide the essential character to the set rather than the textile material from which the jerseys are made. You further assert that Style MLBJB009 should be classified as printed matter under heading 4911, HTSUSA, because it is more specific than heading 6307, HTSUSA, and the EN’s to heading 6307 specifically exclude articles of “printed matter” (Chapter 49).

In order for the team jerseys to be classified as “printed matter” within the meaning of heading 4911, HTSUSA, the printing must be more than merely incidental to the primary use of the goods. As we have previously noted, the General EN’s to Chapter 49 cover articles for which the essential nature and use is determined by the printed motifs, characters or pictorial representations. While we recognize that the printing conveys the team logo for a major league baseball team, it is not the most important feature of these textile jerseys. In fact, each jersey has been fully fashioned of woven fabric with front and back panels, seams, inset sleeves, and contrasting stitching. Furthermore, as we have previously noted, the EN’s to GRI 3(b) state that essential character may be determined by the nature of the material component, its bulk, quantity, weight or value, or by the role of a constituent material in relation to the use of the good. Clearly, the textile is the material component that imparts the essential character given that its bulk, weight and value are significantly greater than the printed logo. On point is a recent decision in HQ 967924, dated November 22, 2005, where a “circle tag” sticker (Style RSNR01), constructed of a round aluminum frame around a textile decoration with a paperboard backing, was classified in subheading 6307.90.98, HTSUSA, as an other made up article, pursuant to a finding that the textile component provided the essential character under a GRI 3(b) analysis.

As you note in your second submission, dated November 30, 2005, the stickers are designed to be “ornamental”. We agree. In that regard, the carefully crafted detail rendered on the textile component is what conveys the greatest ornamentation. Even without the baseball logo, the textile component is clearly identifiable as a team baseball style shirt or uniform. Thus, the printed team logo is merely incidental because the baseball theme prevails regardless of whether or not the team logo appears on the textile shirts. As such, the textile components are not classifiable in heading 4911, HTSUSA.

In view of the foregoing, we find that the packaged set of fifteen stickers, identified as Style MLBJB009, is properly classified as “Other made up articles . . . “ of textiles in heading 6307, HTSUSA.

Style SP-JBLG-021

Style SP-JBLG-021 consists of a set of nine stickers having a crypt them. These stickers are, prima facie, classifiable in more than one heading in that the stickers are constructed of plastic, paper, fabric, and thread. Each sticker contains multiple components and therefore the following headings must be considered in classifying the stickers: Heading 3926, HTSUSA, which provides for “Other articles of plastics and articles of other materials of headings 3901 to 3914” and heading 4823, HTSUSA, which provides for “ . . .; other articles of paper pulp, paper, paperboard, cellulose wadding or webs of cellulose fibers”.

In view of the foregoing, Style SP-JBLG-021 is not classifiable pursuant to a GRI 1 analysis. GRI 2(a) is not applicable because the article is not incomplete, unfinished, unassembled, or disassembled. GRI 2(b) specifically notes that the classification of goods consisting of more than one material or substance shall be according to the principles of GRI 3. In this case, each of the headings refers to only part of the items contained in each article. Thus, pursuant to GRI 3(a), we must consider the headings equally specific in relation to the goods.

We find that Style SP-JBLG-021 is classifiable as a GRI 3(b) “set” because they consist of goods put up in a set for retail sale which are, prima facie, classifiable in different headings and have been put up in a plastic bag suitable for sale directly to users without repacking. These stickers have been designed to be used together to evoke a crypt theme and an eye-catching display for use in the activity of “scrapbooking”. As such, we find that the nine stickers, which have been packaged together in a clear plastic bag, are classified as a set pursuant to GRI 3(b) as goods up in a set for retail sale.

On behalf of the importer, EK Success, Inc., you have asserted that Style SP-JBLG-021 should be classified as printed matter under heading 4911, HTSUSA. We disagree. Upon careful examination, we have determined that the essential character is conveyed by the plastic tomb, which has been etched in black to give the appearance of a carved stone sarcophagus. Although the three-dimensional fabric mummy has been attached to the plastic tomb, we find that the elaborate plastic sarcophagus most clearly provides the essential character to the entire set. Thus, the set must be classified in accordance with the three dimensional plastic tomb. Since this article in not flat, it cannot be classified in heading 3919, HTSUSA, which provides for “flat shapes” of plastics. As such, we find that the set, identified as Style SP-JBLG-021, is properly classified as “Other articles of plastics . . . ” in heading 3926, HTSUSA.

HOLDING:

The subject merchandise, identified as Style STSAL01 (stylized alphabet stickers), is correctly classified in subheading 4911.99.8000, HTSUSA, which provides for “Other printed matter, including printed pictures, and photographs: Other: Other: Other: Other”. The general column one duty rate is “Free”.

The subject merchandise, identified as Styles JJDC006C and HDJB02 (motorcycle stickers), is correctly classified in subheading 4823.90.6600, HTSUSA, which provides for “Other paper, paperboard, cellulose wadding and webs of cellulose fibers, cut to size or shape; other articles of paper pulp, paper, paperboard, cellulose wadding or webs of cellulose fibers: Other: Other: Other: Of coated paper or paperboard: Other”. The general column one duty rate is “Free”.

The subject merchandise, identified as Style MLBJB009 (major league baseball stickers), is correctly classified in subheading 6307.90.9889, HTSUSA, which provides for “ Other made up articles, including dress patterns: Other: Other: Other, Other: Other”. The general column one duty rate is 7 percent ad valorem.

The subject merchandise, identified as Style SP-JBLG-021 (crypt stickers), is correctly classified in subheading 3926.40.0000, HTSUSA, which provides for “Other articles of plastics and articles of other materials of headings 3901 to 3914: Statuettes and other ornamental articles”. The general column one duty rate is 5.3 percent ad valorem.

Please note that the duty rates set forth in this ruling letter are merely provided for your convenience and are subject to change. The text of the most recent HTSUSA and the accompanying duty rates are provided on the World Wide Web at www.usitc.gov.

Sincerely,


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