CLA-2 RR:TC:GC 962050 MMC
Service Port Director of Customs
601 S. Zaragosa
El Paso, Texas 20005
RE: IA 17/98; Imitation Toy Jewelry; HRL 961396
Dear Port Director:
This is in response to your June 5, 1998, memorandum (CLA-2-EP:C:C MLA) forwarding a submission dated March 17, 1998, by
counsel on behalf of L.M. Becker & Co., Inc. d/b/a Toy n Joy,
requesting internal advice concerning the classification of
articles identified as imitation toy jewelry under the Harmonized
Tariff Schedule of the United States (HTSUS). A product list
and catalog pictures of the subject merchandise were submitted
with the request.
The importer's product list divides its merchandise into
categories, with a variety of different items in each category.
This internal advice addresses only the first three categories;
"50 › Capsule Assortments" "25› Capsule Assortments," "25› Mini
Capsule Assortments," and the item numbers listed on the table
below. Articles containing a mixture of jewelry and other
articles are not the subject of this internal advice.
FACTS:
The subject articles are a variety of metal necklaces,
pendants, bracelets and rings in assorted styles listed by item
number in the table below.
50 › Capsule
Assortments
25› Capsule
Assortments
25› Mini Capsule
Assortments
950AB ankles &
bracelets
936AB ankles &
bracelets
527AA ring
assortments
950AL aliens
assortment
936AL aliens
assortment
527AL alien rings
950BH body hardware
936FJ flower bead
jewelry
527FJ flower bead
jewelry
950CF cool flower
936PC peace sign
necklace
527FS friendship
950FF full flower
AUGUST
936RN fashion rings
527RN fashion ring
950FS friendship
necklace
936SL silver
jewelry
527SL silver jewelry
950HJ jute jewelry
asst.
936ZZ gold rush
527ZZ gold rush
950LN leader
necklace
950PZ puzzle
necklace
950RN fashion ring
assortment
950SU sun series
asst.
950YY yin yang
necklace
950ZP zuni pendant
950ZZ gold jewelry
The metal appears to be a spray painted base metal. All of the
jewelry has crude base metal settings and a variety of insecure
closures, none of which are commonly found on imitation jewelry.
Counsel for the importer indicates that all of the jewelry is
valued under 8 cents a piece. The articles are packaged in
plastic egg-shaped containers. They are sold exclusively in
coin-operated vending machines.
The subheadings under consideration are as follows:
7117 Imitation jewelry: [o]f base metal, whether or not
plated with precious metal:
7117.19 Other
7117.19.60 Toy jewelry valued not over 8 cents
per piece
7117.19.90 Other
Other
Valued not over 20 cents per dozen pieces or
parts
7117.90.45 Toy jewelry (except parts)
Other
7117.90.75 Of plastics
9503.90.0030 Other toys; reduced-size ("scale")
models and similar recreational
models, working or not; puzzles of
all kinds; and parts and
accessories thereof: Other: Other:
Other toys (except models), not
having a spring mechanism
ISSUE:
Whether the imitation jewelry packaged in egg-like
containers and sold exclusively in coin operated vending machines
is classifiable as toy jewelry.
LAW AND ANALYSIS:
Classification under the HTSUS 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 GRIs may then
be applied.
Notes 8 and 10 to Chapter 71, HTSUS, (now Notes 9 and 11)
state, in pertinent part, that the scope of the term "imitation
jewelry" includes any small object of personal adornment (gem-set
or not) such as rings, bracelets, necklaces, brooches, earrings,
watch chains, fobs, pendants, etc., not incorporating pearls,
precious metal or precious or semiprecious stones. The subject
jewelry meets this definition. As such, it is clearly
classifiable within the scope of heading 7117, HTSUS. The only
question which remains is whether the jewelry is classifiable as
"toy" jewelry for tariff purposes.
The term "toy" is not defined in the HTSUS. In
Headquarters Ruling Letter (HRL) 959961 dated October 30, 1997,
we indicated that the determination of whether an article is a
"toy" for tariff purposes must be made at the heading level,
specifically heading 9503, HTSUS. If an article can be shown to
be principally used for the amusement of children or adults, it
will be classified in the appropriate headings and subheadings of
Chapter 95, subject to the Section and Chapter Notes. If it is
determined that an article is not principally used for amusement,
it will be classifiable elsewhere in the HTSUS. Stated another
way, the scope of heading 7117, the imitation jewelry provision,
does not include toys of Chapter 95, as the term "toy" has been
interpreted for Chapter 95.
We were nevertheless presented with a provision for toy
jewelry at the eight-digit, subheading level. Since toy jewelry
falls under the provision for imitation jewelry, we found that
toys described in this heading are different from "toys" of
Chapter 95. If an article meets the toy definition it would be
classifiable in Chapter 95, not heading 7117, HTSUS. Therefore,
a differentiation must exist to give meaning to the subheading
phrase "toy jewelry." To this end we stated that to be
classifiable as "toy jewelry" an article must be "imitation
jewelry" as defined in Notes 9(a) and 11 to Chapter 71, HTSUS,
and manifest "substantial play value." Furthermore, any claim
that an article has "substantial play value"must be corroborated
by evidence of that articles' principal use.
When the classification of an article is determined with
reference to its principal use, Additional U.S. Rule of
Interpretation 1(a), HTSUS, provides that, in the absence of
special language or context which otherwise requires, such 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. In other words, the
article's principal use at the time of importation determines
whether it is classifiable within a particular class or kind.
While Additional U.S. Rule of Interpretation 1(a), HTSUS,
provides general criteria for discerning the principal use of an
article, it does not provide specific criteria for individual
tariff provisions. However, the U.S. Court of International
Trade (CIT) has provided factors, which are indicative but not
conclusive, to apply when determining whether merchandise falls
within a particular class or kind. They include: general
physical characteristics, the expectation of the ultimate
purchaser, channels of trade, environment of sale (accompanying
accessories, manner of advertisement and display), use in the
same manner as merchandise which defines the class, economic
practicality of so using the import, and recognition in the trade
of this use. United States v. Carborundum Company, 63 CCPA 98,
C.A.D. 1172, 536 F. 2d 373 (1976), cert. denied, 429 U.S. 979.
In HRL 959961, we classified a base metal adjustable ring
identified as the "Phantom Ring." The ring was created as a
promotional "tie-in" to be distributed in connection with "The
Phantom" a major motion picture release by Paramount Pictures.
According to the protestant the ring had great nostalgic value
for "baby-boomers" who were comic-book collectors in their youth.
The ring was used as a promotional keepsake for moviegoers.
We determined that the subject "Phantom Ring" was not "toy
jewelry" because while its general physical characteristics,
adjustable band, etc. indicated its possible use as "toy jewelry"
the expectation of the ultimate purchaser, the environment of
sale and the manner as merchandise which defines the class all
indicated the "Phantom Ring" was a promotional article or piece
of memorabilia lacking sufficient "play value."
In this instance, the physical characteristics of the
jewelry namely its colored base metal and the crude, insecure
closures indicate that the jewelry is toy jewelry. The ultimate
purchaser while expecting to wear the article, is expecting to
wear it during play. Moreover, this jewelry travels through
channels of trade reserved for toys and novelty items and not
those of the imitation jewelry. The jewelry is sold in coin-operated vending machines which are placed in super markets, drug
and convenience stores; an environment of sale usually reserved
for toys and not one where general imitation jewelry is sold.
Rather, other non-toy imitation jewelry is sold at jewelry and
department stores. Additionally, this jewelry is not used in the
same manner as imitation jewelry, that is to say, it is not worn
to accessorize clothing, etc. but rather to imitate a "pretty
lady or handsome man." Finally, the economic practicality of
using the subject jewelry as general imitation jewelry is
prohibitive as indicated by its value as well as its 25-50 cent
retail price. A fact confirmed by the inclusion of a value
measurement in the language of subheading 7117.19 and 7117.90,
HTSUS. As the jewelry has significant play value it is
classifiable as imitation toy jewelry. For an analysis of
similar merchandise please see HRL 961396 dated August 24, 1998.
HOLDING:
The jewelry is classifiable, dependant upon its value and
constiuent material under subheadings 7117.19.60, HTSUS,
7117.90.45, HTSUS, or 7117.90.75, HTSUS.
This decision should be mailed by your office to counsel no
later than 60 days from the date of this letter. On that date,
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 the public via the Diskette Subscription
Service, Freedom of Information Act and other public access
channels.
Sincerely,
John Durant, Director
Commercial Rulings Division