CLA-2 CO:R:C:F 955861 GGD
Area Director of Customs
JFK Airport Area
Building 178
Jamaica, New York 11430
RE: Decision on Application for Further Review of Protest No.
1001-93-100783, filed February 10, 1993, concerning the
classification of "Little Gems Stick-on Earrings." The
items are imported from Taiwan.
Dear Sir:
This is a decision on a protest timely filed, against your
decision in the classification and liquidation in November 1992,
of "Little Gems Stick-on Earrings" that were entered in April
1992.
FACTS:
You classified the merchandise under subheading
4911.91.4040, Harmonized Tariff Schedule of the United States
Annotated (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 goods were dutiable at
3.1 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 contain pictures and/or designs. 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 3926.40.0000, HTSUSA, as other articles
of plastics, statuettes and other ornamental articles; or in
subheading 4911.91.4040, HTSUSA, as other printed matter,
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
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.
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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.
Although the stick-on articles are designed to decorate and
adorn, they also incorporate pictures and/or designs. 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 subject items are designed for
decoration, it follows that any printing that they incorporate is
consistent with their use as ornamental articles. Thus, the
motifs and 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. Since the "Little Gems Stick-on Earrings" contain
pictures and/or designs, they are classified in subheading
4911.91.4040, HTSUSA.
HOLDING:
The "Little Gems Stick-on Earrings" are classified in
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 protest should be denied in full. A copy of this
decision should be attached to the Form 19 to be returned to the
protestant.
In accordance with Section 3A(11)(b) of Customs Directive
099 3550-065, dated August 4, 1993, Subject: Revised Protest
Directive, this decision should be mailed by your office to the
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protestant no later than 60 days from the date of this letter.
Any reliquidation of the entry in accordance with the decision
must be accomplished prior to mailing of the decision. Sixty
days from the date of the decision, the Office of Regulations and
Rulings will take steps to make the decision available to Customs
personnel via the Customs Rulings Module in ACS, and to the
public via the Diskette Subscription Service, Lexis, the Freedom
of Information Act and other public access channels.
Sincerely,
John Durant, Director
Commercial Rulings Division