CLA-2 RR:CTF:TCM H236057 EGJ
Vicki DeLuca
GHY USA, Inc.
572 South 5th Street
Pembina, ND 58271
Re: Revocation of NY G87437, NY H87608, NY J80204, and Modification of NY I88477, NY I87967, NY I87116 and NY I80558: Body Stickers with Glitter and/or Plastic Gemstones
Dear Ms. DeLuca:
This is in reference to New York Ruling Letter (NY) G87437, dated February 27, 2001, issued to you concerning the tariff classification of “Trend Gems” body art stickers under the Harmonized Tariff Schedule of the United States (HTSUS). U.S. Customs and Border Protection (CBP) classified the body stickers under heading 7117, HTSUS, as imitation jewelry. We have reviewed NY G87437 and find it to be in error.
For the reasons set forth below, we hereby revoke NY G87437 and the following rulings which classify body stickers with glitter and/or plastic gems under heading 7117, HTSUS: NY H87608, dated February 12, 2002, and NY J80204, dated January 24, 2003. We also modify the following rulings which classify body stickers with glitter and/or plastic gems under heading 7117, HTSUS: NY I88477, dated December 5, 2002, NY I87967, dated November 15, 2002, NY I87116, dated October 9, 2002, and NY I80558, dated April 23, 2002.
Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. §1625(c)(1)), as
amended by section 623 of Title VI, notice proposing to revoke or to modify the seven aforementioned rulings was published on May 7, 2014, in Volume 48, Number 18, of the Customs Bulletin. No comments were received in response to the notice.
FACTS:
In NY G87437, the subject merchandise is “Trend Gems” glitter body art. The body art is described as “temporary tattoo like articles made of a clear plastic acrylic material tape, glitter and or acrylic beads and are meant to be worn to adorn the body. The four samples are a flower, a shamrock, a star, and the word ‘Love.’” Any samples or pictures which CBP may have maintained of the body stickers were destroyed in the September 11, 2001 attacks on the World Trade Center in New York. However, we have searched the internet and found pictures of Trend Gems glitter body art which resemble the merchandise described in the ruling. These pictures are provided below:
Based upon the ruling’s description and these pictures, the acrylic beads are plastic gemstones. Some of the body stickers only consist of plastic gemstones, some body stickers only consist of glitter and some of the body stickers consist of a combination of glitter and plastic gemstones.
ISSUES:
What is the tariff classification of body stickers which consist of glitter and/or plastic gemstones?
LAW AND ANALYSIS:
Merchandise imported into the United States is classified under the HTSUS. Tariff classification is governed by the principles set forth in the General Rules of Interpretation (GRIs) and, in the absence of special language or context, which requires otherwise, by the Additional U.S. Rules of Interpretation. GRI 1 requires that classification be determined first according to the terms of the headings of the tariff schedule and any relative section or chapter notes and, unless otherwise required, according to the remaining GRIs taken in their appropriate order.
The HTSUS provisions at issue are as follows:
3919 Self-adhesive plates, sheets, film, foil, tape, strip and other flat shapes, of plastics, whether or not in rolls:
3919.90 Other:
3919.90.50 Other …
* * *
3926 Other articles of plastics and articles of other materials of headings 3901 to 3914:
3926.90 Other:
3926.90.40 Imitation gemstones …
* * *
3926.90.99 Other …
* * *
7103 Precious stones (other than diamonds) and semi-precious stones, whether or not worked or graded but not strung, mounted or set; ungraded precious stones (other than diamonds) and semi-precious stones, temporarily strung for convenience of transport:
* * *
7106 Silver (including silver plated with gold or platinum), unwrought or in semi manufactured forms, or in powder form …
* * *
7113 Articles of jewelry and parts thereof, of precious metal or of metal clad with precious metal …
* * *
7117 Imitation jewelry:
7117.90 Other:
Other:
Valued not over 20 cents per dozen pieces or parts:
7117.90.55 Other …
* * *
Note 9 to Chapter 71 states as follows:
9. For the purposes of heading 7113, the expression "articles of jewelry" means:
(a) Any small objects of personal adornment (for example, rings, bracelets, necklaces, brooches, earrings, watch chains, fobs, pendants, tie pins, cuff links, dress studs, religious or other medals and insignia); and
(b) Articles of personal use of a kind normally carried in the pocket, in the handbag or on the person (for example, cigar or cigarette cases, snuff boxes, cachou or pill boxes, powder boxes, chain purses or prayer beads).
These articles may be combined or set, for example, with natural or cultured pearls, precious or semiprecious stones, synthetic or reconstructed precious or semiprecious stones, tortoise shell, mother-of-pearl, ivory, natural or reconstituted amber, jet or coral.
* * *
Note 11 to Chapter 71 states as follows:
11. For the purposes of heading 7117, the expression "imitation jewelry" means articles of jewelry within the meaning of paragraph (a) of note 9 above (but not including buttons or other articles of heading 9606, or dress combs, hair slides or the like, or hairpins, of heading 9615), not incorporating natural or cultured pearls, precious or semiprecious stones (natural, synthetic or reconstructed) nor (except as plating or as minor constituents) precious metal or metal clad with precious metal.
* * *
GRI 1 requires that classification be determined first according to the terms of the headings of the tariff schedule and any relative section or chapter notes. Heading 7117, HTSUS, provides for imitation jewelry. Note 11 to Chapter 71 explains that imitation jewelry means “articles of jewelry,” defined in Note 9(a) to Chapter 71, that do not consist of cultured pearls, precious/semiprecious stones or precious metal. As imitation jewelry of heading 7117, HTSUS, only imitates the articles of jewelry which are described in Note 9(a), we will not apply the description of jewelry set forth in Note 9(b) to the instant merchandise.
Note 9(a) states that, for the purposes of heading 7113, HTSUS, “articles of jewelry” are small articles of adornment. Note 9(a) also provides a list of examples, which include rings, earrings, bracelets and other articles of jewelry. In NY G87347, CBP classified the body stickers under heading 7117, HTSUS, as imitation jewelry. However, while paragraph (a) of Note 9 defines articles of jewelry as “small articles of personal adornment,” we cannot read paragraph (a) without the context of the first clause of Note 9. Note 9 begins with “for the purposes of heading 7113, the expression ‘articles of jewelry’ means …” As such, imitation jewelry must imitate articles of jewelry which are described in paragraph (a) and are classified under heading 7113, HTSUS.
Heading 7113, HTSUS, provides for “articles of jewelry and parts thereof, of precious metal or of metal clad with precious metal.” Thus, imitation jewelry must imitate small articles of personal adornment of precious metal, or of metal clad with precious metal. Per Note 9, imitation jewelry may be combined or set with imitations of pearls, precious or semiprecious stones, tortoise shell, mother-of-pearl, ivory, amber, jet or coral.
The subject merchandise consists of body stickers. The body stickers do not imitate articles of jewelry clad with any type of metal. Rather, they imitate tattoos. These imitation tattoos are embellished with plastic gemstones and glitter. The plastic gemstones imitate precious stones which are classified in heading 7103, HTSUS. The glitter imitates silver powder which is classified under heading 7106, HTSUS. As the body stickers do not imitate jewelry of heading 7113, HTSUS, they cannot be classified as imitation jewelry under heading 7117, HTSUS.
The body stickers each consist of a clear, self-adhesive flat plastic shape covered with plastic gemstones, glitter or both. The sticker component is classified under subheading 3919.90.50, HTSUS, as a self-adhesive flat shape. The imitation gemstones are classified under subheading 3926.90.40, HTSUS, as imitation gemstones of plastics. The glitter is classified under subheading 3926.90.99, HTSUS, as other articles of plastics. See Headquarters Ruling Letter (HQ) 965632, dated July 5, 2002, and NY K85638, dated May 21, 2004 (glitter is classified under subheading 3926.90.99). As the body stickers consist of two or more components which are classified under different headings, the body stickers are composite goods.
GRI 3(b) governs the classification of composite goods and provides that:
When by application of rule 2(b) or for any other reason, goods are, prima facie, classifiable under two or more headings, classification shall be effected as follows:
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.
Thus, a composite good is classified according to the component which imparts the good’s essential character. In order to identify a composite good’s essential character, the U.S. Court of International Trade (CIT) has applied the factors listed in EN VIII to GRI 3(b) which are “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.” The Home Depot v. United States, 427 F. Supp. 2d 1278, 1293 (Ct. Int’l Trade 2006). With regard to the component which imparts the essential character, the CIT has stated it is “that which is indispensable to the structure, core or condition of the article, i.e. what it is.” Id. citing A.N. Deringer, Inc. v. United States, 66 Cust. Ct. 378, 383 (1971).
Applying the aforementioned factors, we will first examine those body stickers which only consist of plastic gemstones and a sticker. The bulk and weight of the plastic gemstones is likely greater than the bulk and weight of the sticker. Looking at quantity, the number of plastic gemstones outnumbers the number of plastic stickers because each flat sticker includes multiple plastic gemstones. We do not have any information on the value of each component.
Also, we must look to the role of each component. The sticker provides the adhesive to attach the imitation tattoo to the consumer’s body. The sticker consists of a clear plastic acrylic material. Conversely, the plastic gemstones are shiny and colorful. The plastic gemstones provide the visual interest to the imitation tattoos. For all of these reasons, the plastic gemstones impart the essential character to these goods. The body stickers which only consist of plastic gemstones and a sticker are therefore classified under subheading 3926.90.40, HTSUS, as imitation gemstones of plastics.
Next, we turn to the imitation tattoos which only consist of glitter and a sticker. Similar to the above analysis, we find that the quantity of glitter is greater than the quantity of the sticker. One sticker is covered with lots of glitter. The glitter also provides more visual interest than the clear acrylic sticker. The sticker likely weighs more than the glitter. We do not have information regarding the value of the glitter and the sticker. For all of these reasons, we find that the glitter imparts the essential character to these imitation tattoos. The body stickers which only consist of glitter and a sticker are therefore classified under subheading 3926.90.99, HTSUS, which provides for other articles of plastics.
Finally, we look to the body stickers which combine plastic gemstones, glitter and a clear flat sticker. In these imitation tattoos, the quantity of glitter is greater than the quantity of plastic gemstones. The glitter also sparkles brighter than the plastic gemstones. The plastic gemstones are larger and likely comprise more of the bulk and weight of the sticker. The role of both the glitter and the plastic gemstones is to make the imitation tattoo bright, shiny and attractive. However, we find that the glitter covers more of the surface area of these stickers and therefore provides more visual interest than the plastic gemstones. As such, we find that the glitter imparts the essential character to the imitation tattoos which are a combination of glitter, plastic gemstones and a sticker. These body stickers are classified under subheading 3926.90.99, HTSUS, which provides for other articles of plastics.
HOLDING:
By application of GRI 3(b), the body stickers which only consist of plastic gemstones and a clear sticker are classified under subheading 3926.90.40, HTSUS, which provides for “Other articles of plastics and articles of other materials of headings 3901 to 3914: other: imitation gemstones ….” The 2014 column one, general rate of duty is 2.8 percent ad valorem.
By application of GRI 3(b), the body stickers which only consist of glitter and a clear sticker are classified under subheading 3926.90.99, HTSUS, which provides for “Other articles of plastics and articles of other materials of headings 3901 to 3914: other: other ….” The 2014 column one, general rate of duty is 5.3 percent ad valorem.
By application of GRI 3(b), the body stickers which consist of glitter, plastic gemstones and a clear sticker are classified under subheading 3926.90.99, HTSUS, which provides for “Other articles of plastics and articles of other materials of headings 3901 to 3914: other: other ….” The 2014 column one, general rate of duty is 5.3 percent ad valorem.
Duty rates are provided for your convenience and are subject to change. 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 G87437, dated February 27, 2001, NY H87608, dated February 12, 2002, and NY J80204, dated January 24, 2003, are hereby revoked.
NY I88477, dated December 5, 2002, NY I87967, dated November 15, 2002, and NY I87116, dated October 9, 2002, NY I80558, dated April 23, 2002, are hereby modified.
Sincerely,
Myles B Harmon, Director
Commercial and Trade Facilitation Division