CLA-2 CO:R:C:F 954158 GGD
Area Director of Customs
JFK Airport Area
Building 178
Jamaica, New York 11430
RE: Decision on Application for Further Review of Protest No.
1001-93-100475, filed January 26, 1993, concerning the
classification of "stick-on earrings." The items are imported
from Taiwan.
Dear Sir:
This is a decision on a protest filed January 26, 1993,
against your decision in the classification and liquidation in
November 1992, of "stick-on earrings" that were entered in March
1992.
FACTS:
You classified the merchandise under subheading 3926.90.9090
(which is now 3926.90.9590), Harmonized Tariff Schedule of the
United States Annotated (HTSUSA), the provision for "Other
articles of plastics and articles of other materials of headings
3901 to 3914: Other: Other, Other." The goods were dutiable at
5.3 percent ad valorem. Protestant claims that the merchandise
should be classified under subheading 9503.90.6000, HTSUSA, the
provision for other toys (except models), not having a spring
mechanism; and that the goods should be free of duty under
subheading 9902.71.13, HTSUSA (which provides in pertinent part
that, if subject to a general column one rate of duty, articles
[except parts] provided for in heading 9503, valued not over five
cents per unit, are duty free).
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Although no samples were submitted, photographs of various
packages of stick-on items, marketing information, copies of the
invoice and entry documents, and communications with Customs in
New York, indicate that the articles are comprised of plastic in
a variety of shapes and colors, with one adhesive surface that
may be attached to a wide array of surfaces in addition to the
ears and skin, such as clothes, books, walls, etc. The items are
resilient (i.e., they return to original form after being
squeezed) and may contain pictures, designs, characters, symbols,
letters, etc. The stick-on items of all types are imported in
bulk.
ISSUE:
Whether the merchandise is properly classified in subheading
9503.90.6000, HTSUSA, as other toys not having a spring
mechanism; in subheading 3926.90.9590, HTSUSA, as other articles
of plastics, other; in subheading 3926.40.0000, HTSUSA, as other
articles of plastics, statuettes and other ornamental articles;
in subheading 4911.91.4040, HTSUSA, as other printed matter,
pictures, designs and photographs; or in subheading 4911.99.8000,
HTSUSA, as other printed matter, other than pictures, designs and
photographs.
LAW AND ANALYSIS:
Classification under the HTSUSA is made in accordance with
the General Rules of Interpretation (GRIs). The systematic
detail of the harmonized system is such that virtually all goods
are classified by application of GRI 1, that is, 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's may
then be applied. The Explanatory Notes (ENs) to the Harmonized
Commodity Description and Coding System, which represent the
official interpretation of the tariff at the international level,
facilitate classification under the HTSUSA by offering guidance
in understanding the scope of the headings and GRIs.
Heading 9503, HTSUSA, applies to "other toys," i.e., all
toys not specifically provided for in the other headings of
chapter 95. Although the term "toy" is not defined in the
tariff, the EN to chapter 95 indicates that a toy is an article
designed for the amusement of children or adults. Although they
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may provide some amusement, the stick-on earrings are not
designed for amusement, but for adornment, decoration, and
ornamentation. Thus, the items may not be classified as other
toys.
Heading 3926, HTSUSA, provides for "Other articles of
plastics and articles of other materials of headings 3901 to
3914." The EN to heading 3926 indicates that the heading covers
articles of plastics or other materials not elsewhere included or
specified, including (among other items) statuettes and other
ornamental articles.
At the six-digit subheading level, 3926.40, HTSUSA, includes
other articles of plastics, statuettes and other ornamental
articles, while 3926.90 covers other articles of plastics, other.
In other words, subheading 3926.90 is a basket provision for
other articles of plastics less specifically described than
articles classifiable in subheadings 3926.10-.40. In light of
the fact that the stick-on articles are designed to decorate and
adorn, the "stick-on earrings" that contain no printed matter
(i.e., no pictures, designs, characters, symbols, letters, etc.)
are classified in subheading 3926.40.0000, HTSUSA, as other
articles of plastics, statuettes and other ornamental articles.
As noted in the facts, some of the stick-on items may
contain pictures, designs, characters, symbols, letters, etc.
Chapter 39 falls within section VII, HTSUSA. In pertinent part,
note 2 to section VII states that "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 stick-on items
are designed for decoration, it follows that any printing that
they incorporate is consistent with their use as ornamental
articles. Thus, the motifs, characters or pictorial
representations are more than incidental to the primary use of
these items, requiring classification in chapter 49.
Heading 4911, HTSUSA, provides for "Other printed matter,
including printed pictures and photographs." The EN to heading
4911 indicates that the heading covers all printed matter that is
not more particularly covered by the preceding headings of the
chapter. At the six-digit subheading level, 4911.91, HTSUSA,
includes other printed matter, pictures, designs, and
photographs, while 4911.99 covers other printed matter, other
than pictures, designs, and photographs (such as characters,
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symbols, and letters). Therefore, the "stick-on earrings" which
bear printed matter consisting of pictures or designs are
classified in subheading 4911.91.4040, HTSUSA, while the items
that include printed matter in the form of characters, symbols,
or letters are classified in subheading 4911.99.8000, HTSUSA.
HOLDING:
The "stick-on earrings" that incorporate no printed matter
are classified in subheading 3926.40.0000, HTSUSA, the provision
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 applicable to this
merchandise in 1992 was 5.3 percent ad valorem.
The "stick-on earrings" that incorporate other printed
matter consisting of pictures or designs are classified under
subheading 4911.91.4040, HTSUSA, the provision for "Other printed
matter, including printed pictures and photographs: Other:
Pictures, designs and photographs: Printed not over 20 years at
time of importation: Other: Other, Other." The general column
one duty rate applicable to this merchandise in 1992 was 3.1
percent ad valorem.
The "stick-on earrings" that incorporate other printed
matter consisting of characters, symbols, or letters are
classified under subheading 4911.99.8000, HTSUSA, the provision
for "Other printed matter, including printed pictures and
photographs: Other: Other: Other: Other." The general column one
duty rate applicable to this merchandise in 1992 was 4.9 percent
ad valorem.
You are instructed to deny the protest, except to the extent
reclassification of the merchandise as indicated above results in
a net duty reduction and partial allowance. A copy of this
decision should be attached to the Form 19 to be returned to the
protestant.
Sincerely,
John Durant, Director
Commercial Rulings Division