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HQ 968148




June 13, 2006

CLA-2 RR:CTF:TCM 968148 HkP

CATEGORY: CLASSIFICATION

TARIFF NO.: 8306.29.0000

Ms. Francene C. Hinds
JAV International, Inc.
500 Ocean Avenue
East Rockaway, NY 11518-1235

RE: Brass medallion from China; revocation of NY J86623

Dear Ms. Hinds:

This is in reference to New York Ruling Letter (NY) J86623, dated July 8, 2003, regarding the classification of a commemorative medallion under the Harmonized Tariff Schedule of the United States (“HTSUS”). We have reconsidered NY J86623 and have determined that the tariff classification of the medallion is not correct.

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, 2186 (1993), notice of the proposed revocation was published on April 26, 2006, in the Customs Bulletin, Volume 40, Number 18. No comments were received in response to this notice.

FACTS:

In NY J86623, the medallion was described as follows:

The medallion is made of brass and measures approximately 2 inches in diameter. The front of the medallion displays a raised eagle head and words, ‘Forever Heroes, Flight 93, Honor and Hope’. The back lists all of the names of the deceased passengers and airline employees.

NY J86623 classified the medallion in subheading 7419.99.5050, HTSUS, which provides for: “Other articles of copper: Other: Other: Other: Other: Other.”

ISSUE:

Whether the medallion is classified in heading 7419, HTSUS, which provides for “other articles of copper”, or in heading 8306, HTSUS, which provides for “statuettes and other ornaments, of base metal.”

LAW AND ANALYSIS:

Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). 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 2 through 6 may then be applied in order.

The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the HTSUS. While not 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 these headings. See T.D. 89-80.

The HTSUS provisions under consideration are as follows:

7419 Other articles of copper:
Other:
Other:
Other:
Other
Other ..

8306 Bells, gongs and the like, nonelectric, of base metal; statuettes and other ornaments, of base metal; :
Statuettes and other ornaments, and parts thereof: 8306.29.0000 Other

As stated above, NY J86623 classified the medallion in subheading 7419.99.5050, HTSUS, which provides for: “Other articles of copper: Other: Other: Other: Other: Other.” Heading 7419 is found in Section XV of the HTSUS. Legal Note 5 to Section XV, HTSUS, provides that “an alloy of base metal is to be classified as an alloy of the metal which predominates by weight over each of the other metals.” General Explanatory Note (1) to Chapter 74 explains that under the provisions of Note 5 to Section XV, brass may be classified with copper. Therefore the medallions are, prima facie, classifiable in this heading.

However, EN 74.19, HTSUS, provides that:

[T]his heading covers all articles of copper other than those covered by preceding headings of this Chapter or by Note 1 to Section XV, or articles specified or included in Chapter 82 or 83, or more specifically covered elsewhere in the Nomenclature. (Original emphasis.)

Heading 8306, HTSUS, provides for “statuettes and other ornaments, of base metal”. Legal Note 3 to Section XV, HTSUS, defines the expression “base metals” to include copper. The term “ornament” is not defined in the HTSUS. A tariff term that is not defined in the HTSUS or in the ENs is construed in accordance with its common and commercial meaning. Nippon Kogaku (USA) Inc. v. United States, 69 CCPA 89, 673 F.2d 380 (1982). Common and commercial meaning may be determined by consulting dictionaries, lexicons, scientific authorities and other reliable sources. C.J. Tower & Sons v. United States, 69 CCPA 128, 673 F.2d 1268 (1982). Merriam-Webster Online dictionary defines “ornament” as “something that lends grace or beauty”.

Explanatory Note 83.06(B), HTSUS, clarifies that:

This group comprises a wide range of ornaments of base metal (whether or not incorporating subsidiary non-metallic parts) of a kind designed essentially for decoration, e.g., in homes, offices, assembly rooms, place of religious worship, gardens.

The group covers articles which have no utility value but are wholly ornamental, and articles whose only usefulness is to contain or support other decorative articles or to add to their decorative effect, for example:

Busts, statuettes and other decorative figures; ornaments for mantelpieces, shelves, etc. (animals, symbolic or allegorical figures, etc.); sporting or art trophies (cups, etc.); wall ornaments incorporating fittings for hanging (plaques, trays, plates, medallions other than those for personal adornment); artificial flowers, rosettes and similar ornamental goods or cast or forged metal knick-knacks for shelves or domestic display cabinets.

The Court of International Trade (CIT) has stated that the canon of construction ejusdem generis, which means literally, “of the same class or kind,” teaches that “where particular words of description are followed by general terms, the latter will be regarded as referring to things of a like class with those particularly described.” Nissho-Iwai American Corp. v. United States (Nissho), 10 CIT 154, 156 (1986). “As applicable to classification cases, ejusdem generis requires that the imported merchandise possess the essential characteristics or purposes that unite the articles enumerated eo nomine in order to be classified under the general terms.” Id. at 157. The essential characteristics or purposes of the above listed exemplars are that they are of base metal and they are decorative. We find the subject medallion to be ejusdem generis with the exemplars of EN 83.06, HTSUS, and therefore prima facie classifiable in heading 8306, HTSUS.

We find that the subject medallion is described with greater specificity in heading 8306, HTSUS, as an ornament of base metal, than in heading 7419, HTSUS, because the medal is designed essentially for decoration, is wholly ornamental and has no utility value. Accordingly, by application of EN 74.19 we find that the medallion is precluded from classification in heading 7419, HTSUS.

HOLDING:

By application of GRI 1, we find that the subject medallion is classified in heading 8306, HTSUS, and is specifically provided for in subheading 8306.29.0000, HTSUS, which provides for “ Statuettes and other ornaments of base metal : Statuettes and other ornaments, and parts thereof: Other”.

The text of the most recent HTSUS and the accompanying duty rates are provided on the World Wide Web at www.usitc.gov.

EFFECT ON OTHER RULINGS:

NY J86623 is revoked. In accordance with 19 U.S.C. §1625(c), this ruling will become effective 60 days after its publication in the Customs Bulletin.

Sincerely,

Myles B. Harmon, Director

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