Internal Advice 10/026; classification of shaped silicone bands

HQ H128496 March 30, 2011 CLA–2 OT:RR:CTF:TCM H128496 AMM CATEGORY: Classification TARIFF NO.: 3926.90.99 Port Director JFK International Airport, Bldg. 77 Jamaica, NY 11430 Attn: Patricia Klein, SIS RE: Internal Advice 10/026; classification of shaped silicone bands Dear Port Director, This is in regard to your Request for Internal Advice, reference number 10/026, initiated by Meeks, Sheppard, Leo & Pillsbury, on behalf of their client, Team Beans, LLC (Team Beans). At issue is the classification of heat set silicone bands under the Harmonized Tariff Schedule of the United States (HTSUS) of various styles of elastic bands made of silicone that have been heat set to form novelty shapes. Samples were provided for our review. In reaching our decision, Customs and Border Protection (CBP) has taken into consideration the original Request for Internal Advice from Team Beans, dated August 24, 2010, a meeting held with representatives from Team Beans at CBP Headquarters on December 21, 2010, and a Supplemental Submission from Team Beans dated January 14, 2011. FACTS: In 2010, Team Beans made several entries of shaped silicone bands. These products were entered as “imitation jewelry” under heading 7117, HTSUS. The Customs and Border Protection (CBP) Port of Entry located at JFK Airport in New York (JFK) is proposing to liquidate these silicone bands under heading 3926, HTSUS, as “Other articles of plastics and articles of other materials of headings 3901 to 3914”. Team Beans, through their agent, initiated a Request for Internal Advice. Each article is a continuous narrow strip, about 1/8th inch thick, with a square cross section, manufactured from 100% silicone. The articles are heat set into various novelty shapes. For instance, the “Toy Story 3” Character Bandz product contains silicone bands molded into the silhouettes of characters from that movie, such as Buzz (an astronaut), Woody (a cowboy), and Jessie (a cowgirl). Many other novelty styles are available. When laid flat on a surface, any given sample measures between 2 and 3 inches across. Only a very few samples could even be considered vaguely circular, such as those shaped like a football or a home plate. Most of the samples are decidedly non-circular, forming silhouettes of famous characters like Kermit the Frog or Shrek, or spelling out the word “Cardinals” in reference to the baseball team from St. Louis, Missouri. There is currently a fashion fad among American youth to wear these types of shaped silicone bands on their wrists. News articles describing the fad are available online, at sources such as Wikipedia (<en.wikipedia.org/wiki/ Silly_bands>), Fox News (<www.foxnews.com/health/2010/05/26/dr-manny-silly-bandz-bracelet-trend-dangerous-kids/>), Time Magazine, (<www.time.com/time/ nation/article/0,8599,1991797,00.html>), and other various sources (e.g., <www.wickedlocal.com/halifax/news/education/x1351163451/Silly-Bandz-banned>, <www.deseretnews.com/article/700034467/Kids-from-preschool-to-college-are-going-bonkers-over-silicone-bracelets.html>). Team Beans markets these products as bracelets for children. The products are packaged in plastic containers, which identify them as “elastic bracelets.” In their condition as imported, none of the samples provided are large enough to fit over a person’s hand. They must be stretched to fit over the hand before being placed on the wrist. Team Beans has submitted an abundance of information on how their product is used as a bracelet by the target consumer. In their original submission, dated August 24, 2010, they refer to a video by a rapper named Young Seige, for his song “My Silly Bandz.” See <www.youtube.com/watch?v=HN_XL8xuT%0>. They refer to an advertisement at www.clarktoys.com, which identifies their product as bracelets. They point to their own packaging, which identifies the product as elastic bracelets. During the meeting at CBP headquarters on December 21, 2010, Team Beans referred to a video by singer Katy Perry, for her song “California Gurls,” in which she wears silly bands on her wrists. See <www.mtv.com/videos/ katy-perry/527631/california-gurls.jhtml>. In their supplemental submission, dated January 14, 2011, Team Beans included news articles about the silly band fad, and pictures of various children and celebrities wearing the silly bands on their wrists. Furthermore, they included test data from Wal-Mart and Hasbro, who tested the instant merchandise using internal standards for costume jewelry and toy jewelry. The original shaped silicone bands were created in 2002 by designers Yumiko Ohashi and Masanori Haneda for Passkey Designs, a Japanese company. In 2003, they received a “Good Design Award for Medium Enterprises” in the “Stationery, office life products; devices, facilities and systems” category by the Japan Industrial Design Promotion Organization (See http://www.g-mark.org/award/detail.html?id=29082&lang=en). Their product, called “animal rubber bands” was designed as an environmentally friendly replacement to the traditional rubber band. This product and other similar products are sold in the United States as replacements for traditional rubber bands. ISSUE: Are the subject silicone bands properly classified under heading 7117, HTSUS, as “imitation jewelry”, under heading 3926, HTSUS, as “other articles of plastics”, or under heading 9503, HTSUS, as “other toys”? LAW AND ANALYSIS: Classification of goods under the HTSUS is governed by the General Rules of Interpretation (GRI). GRI 1 provides that classification 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 GRI may then be applied. The 2011 HTSUS provisions at issue are as follows: 3926 Other articles of plastics and articles of other materials of headings 3901 to 3914: 3926.90 Other: 3926.90.99 Other --------------------------------------------------------- 7117 Imitation jewelry: 7117.90 Other: Other: Valued over 20 cents per dozen pieces or parts: Other: 7117.90.75 Of plastics ---------------------------------------------------------- 9503.00.00 Tricycles, scooters, pedal cars and similar wheeled toys; dolls’ carriages; dolls, other toys; reduced-scale (“scale”) models and similar recreational models, working or not; puzzles of all kinds; parts and accessories thereof Additional U.S. Rule of Interpretation 1(a), HTSUS, states: In the absence of special language or context which otherwise requires – (a) a tariff classification controlled by use (other than actual use) is to be determined in accordance with the use in the United States at, or immediately prior to, the date of importation, of goods of that class or kind to which the imported goods belong, and the controlling use is the principal use. Note 1 to Chapter 39, HTSUS, states: Throughout the tariff schedule the expression ‘plastics’ means those materials of headings 3901 to 3914 which are or have been capable, either at the moment of polymerization or at some subsequent stage, of being formed under external influence (usually heat and pressure, if necessary with a solvent or plasticizer) by molding, casting, extruding, rolling or other process into shapes which are retained on the removal of the external influence. Note 2 to Chapter 39, HTSUS, states, in pertinent part: “This chapter does not cover: … (l) Synthetic rubber, as defined for the purposes of chapter 40, or articles thereof; … (r) Imitation jewelry of heading 7117; …”. Note 4(a) to Chapter 40, HTSUS, states, in pertinent part: In note 1 to this chapter and in heading 4002, the expression ‘synthetic rubber’ applies to: (a) Unsaturated synthetic substances which can be irreversibly transformed by vulcanization with sulfur into non-thermoplastic substances which, at a temperature between 18oC and 29oC, will not break on being extended to three times their original length and will return, after being extended to twice their original length, within a period of 5 minutes, to a length not greater than 1-1/2 times their original length… * * * Note 9(a) to Chapter 71, HTSUS, states, in pertinent part: 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). Note 11 to Chapter 71, HTSUS, states: 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. The Harmonized Commodity Description and Coding System Explanatory Notes (EN), constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the EN provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of the headings. It is CBP’s practice to consult, whenever possible, the terms of the ENs when interpreting the HTSUS. See T.D. 89–80, 54 Fed. Reg. 35127, 35128 (August 23, 1989). The EN to Heading 71.17 states, in pertinent part: 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 71.13, e.g., rings, bracelets (other than wrist-watch bracelets), necklaces, ear-rings, cuff-links, etc., … The General EN to Chapter 95 states, in pertinent part: This Chapter covers toys of all kinds whether designed for the amusement of children or adults. It also includes equipment for indoor or outdoor games, appliances and apparatus for sports, gymnastics or athletics, certain requisites for fishing, hunting or shooting, and roundabouts and other fairground amusements. Team Beans suggests that the correct classification for their silicone band products is under heading 7117, HTSUS, which provides for “imitation jewelry”. They argue that their products are bracelets, because they are marketed as such and children use them in that manner. According to Note 2(r) of Chapter 39, a product that is properly classified under heading 7117, HTSUS, is precluded from classification under Chapter 39, HTSUS. Thus, we must first consider whether the silicone bands can be classified under heading 7117, HTSUS. It is well settled that goods are classified in their condition as imported, not what the article is made into after importation, except where classification is dependent on use. See Leonard Levin Co. v. U.S., 27 C.C.P.A. 101, 105-106, C.A.D. 69 (1939). In this case, the importer states that the goods are jewelry because they are used for personal adornment, as bracelets. However, heading 7117, HTSUS, is not a provision for which classification is dependent on use. It is an eo nomine provision, in that it refers to a commodity by a specific name. Ordinarily, use is not a criteria considered when determining whether merchandise is embraced within an eo nomine provision. J.E. Mamiye & Sons, Inc. v. United States, 509 F. Supp. 1268, 1274 (Cust. Ct. 1980); Pistorino & Co. v. United States, 599 F.2d 444 (C.C.P.A. 1979); F.W. Myers & Co. v. United States, 24 Cust. Ct. 178, 184-185, C.D. 1228 (1950). However, in United States v. Quon Quon Co., 46 C.C.P.A. 70 (1959), the Court of Customs and Patent Appeals stated: Of all things most likely to help in the determination of the identity of a manufactured article, beyond the appearance factors of size, shape, construction and the like, use is of paramount importance. To hold otherwise would logically require the trial court to rule out evidence of what things actually are every time the collector thinks an article, as he sees it, is specifically named in the tariff act. Quon Quon, 46 C.C.P.A. at 73. The Quon Quon case has come to stand for the proposition that use may be considered in determining the identity of an eo nomine provision. Sears Roebuck & Co. v. United States, 790 F. Supp. 299, 302 (Ct. Int’l. Trade 1992); J.E. Mamiye & Sons, Inc., 509 F. Supp. at 1274; Sanji Kobata et al. v. United States, 326 F. Supp. 1397, 1402-1403 (Cust. Ct. 1971); See also HQ W968275, dated January 26, 2010; HQ 964444, dated December 18, 2001; HQ 963032, dated July 24, 2000; HQ 957997, dated August 7, 1995. Use is simply one of the factors to be considered in determining whether merchandise falls within the scope of an eo nomine tariff provision. Myers v. United States, 969 F. Supp. 66, 72 (Ct. Int’l. Trade 1997); See also HQ 964444; HQ 957997. “The Court does not read the [Quon Quon] opinion to support the proposition that certain eo nomine provisions are in fact governed by use.” Myers, 969 F. Supp. at 72. By reading together Notes 9 and 11 of Chapter 71, HTSUS, an article of imitation jewelry is “any small object of personal adornment” which does not incorporate pearls, precious or semiprecious stones, or precious metals. See also EN 71.17. “Bracelet” is listed as an exemplar. The terms “bracelet”, “ornament”, and “adorn” are not defined in the text of the HTSUS or the Explanatory Notes. When, as in this case, a tariff term is not defined by the HTSUS or its legislative history, “the term’s correct meaning is its common meaning.” Mita Copystar Am. v. U.S., 21 F.3d 1079, 1082 (Fed. Cir. 1994). The common meaning of a term used in commerce is presumed to be the same as its commercial meaning. Simod Am. Corp. v. U.S., 872 F.2d 1572, 1576 (Fed. Cir. 1989). To ascertain the common meaning of a term, a court may consult “dictionaries, scientific authorities, and other reliable information sources” and “lexicographic and other materials.” C.J. Tower & Sons v. U.S., 673 F.2d 1268, 1271 (C.C.P.A. 1982); Simod, 872 F.2d at 1576. In their determination of what this “common meaning” encompasses, CBP and the courts may examine the use to which the imported goods are put. See HQ 966880, dated February 9, 2004 (citing Quon Quon). In Merriam Webster’s Third New International Dictionary (1993), “adorn” is defined as: “1a: to make pleasing or attractive, b: to add to the pleasantness, attractiveness, beauty, or splendor of.” “Bracelet” is defined as: “1: an ornamental band, ring, or chain worn about the wrist, 2: something that in appearance or position suggests a bracelet.” “Ornament” is defined as “2a: something that lends grace or beauty: a decorative part or addition.” CBP has previously defined the word “adorn” as “to enhance the appearance of, especially with beautiful objects.” See HQ 963999, dated November 21, 2001. In order to determine whether the articles are in fact “bracelets,” CBP will examine the four factors laid out in Quon Quon; namely the size, shape, construction, and use of the articles. Each will be considered in turn. A. Size Each silicone band sample is about 1/8 inch thick. The small thickness of the article is not a bar to its classification as a bracelet. A traditional gold chain may be even thinner than the instant merchandise, and still be considered a bracelet. The samples provided by Team Beans come in various shapes and sizes. They are small articles, which easily fit in a person’s palm. Each silicone band undergoes a heat-set process, which means that it takes a specific two-dimensional shape when laid flat upon a surface. In this position, the largest dimension across will range from anywhere between 2 and 3 inches, depending on the individual sample. In their condition as imported, no sample provided is large enough to fit over a person’s hand. The article must be stretched over the hand, so that it may collapse on the wrist. Traditional ring or band style bracelets are large enough to fit over a person’s hand. The instant merchandise is much smaller than any traditional bracelet. On balance, the article’s small size counsels against its classification as a bracelet. B. Shape The definition of bracelet given above includes rings, bands, and chains. Ring style bracelets most often have a rigid form. They usually have a continuous oval or circle shape, but other geometric shapes (square, octagonal, etc.) are possible. Some rigid ring style bracelets are not continuous, but instead have a small gap in the circle so that a person could slip in their wrist. Band style bracelets are flexible, and have a continuous circular shape. They may also incorporate an elastic feature, such that they can be stretched over the hand, and collapse on the wrist. Chain style bracelets are a long strip of material, which is wrapped around a person’s wrist. Usually, there is some sort of fastener for joining the two ends together, although this is not always necessary. See e.g., HQ 964475, dated May 7, 2001 (snap bracelets); HQ 088126, dated January 10, 1991 (snap bracelets). Of these three styles, the instant merchandise is most like a band style bracelet. Band style bracelets are a continuous strip of some flexible material, such as fabric, plastic, or rubber. When laid flat on a table, a band style bracelet has a generally circular shape, although it can usually be manipulated into various oval shapes. The average consumer would recognize an item of this sort to be a bracelet, because it is circular and shaped to fit around a person’s wrist. However, the instant merchandise has a decidedly non-circular shape. Of all the samples submitted, the only ones that could even be considered close to circular were the football shaped sample (an ellipse) and the home plate shaped sample (a pentagon). The rest of the samples form various non-circular silhouettes, depending on the theme of the packaging. For example, one sample submitted spells out the word “Cardinals”, in reference to the baseball team from St. Louis, Missouri. Another sample submitted is in the shape of a Buckeye leaf (which resembles a six-pointed star), in reference to the mascot for Ohio State University. In their imported condition, the instant merchandise is not recognizable as bracelets, jewelry, or imitation jewelry. The non-circular characteristic is specifically intended by the design, and on balance, the article’s shape counsels against its classification as a bracelet. C. Construction The fact that the articles are made of 100% silicone is not a bar to their classification as a bracelet. CBP has classified other articles made of 100% silicone under heading 7117, HTSUS. See HQ H015873, dated October 31, 2006 (medical ID bracelet); NY L84639, dated May 6, 2005 (silicone wristband); NY L83924, dated April 7, 2005 (silicone wristband); NY L81482, dated December 22, 2004 (Fanband bracelet). The importer alleges that the instant merchandise is classifiable as imitation jewelry because some of their buyers tested the products as “children’s jewelry”. In Exhibit D of their January 14, 2011 submission, the importer includes Technical Report (5110)239-0007, from Hasbro, Inc. The articles were tested under Hasbro’s HLP-002 protocol for licensed non-toy jewelry. The test requires a minimum of 10 pounds of force (lbf) tensile strength. The article failed the test, in that only 5.85 lbf was required to break it. During the December 21, 2010 meeting, this was cited by Team Beans as an importa