CLA-2 RR:CR:GC 959961 HMC
Port Director of Customs
300 South Ferry Street
Terminal Island, CA 90731
RE: PRD 2720-96-101019; The Phantom Official Ring; Heading 7117;
Subheadings 7117.19.60 and 7117.19.90; Chapters 71, Notes 9(a)
and 11; General Explanatory Note to Chapter 95; Explanatory Note
71.17; Imitation Jewelry; Toy Jewelry; Articles of Personal
Adornment; Headquarters Rulings 957829, 952296, 956524, 956160,
954690, 950700, 085020, 088663, 086407; Additional U.S. Rule of
Interpretation 1(a); GRI 1; GRI 6.
Dear Port Director:
This is our decision on Protest 2720-96-101019, filed
against your classification of "The Phantom--The Official Ring,"
imported by Street Players Holding Corporation. The entries
under protest were liquidated on July 5, 1996, July 19, 1996, and
August 2, 1996, and this protest timely filed on October 3, 1996.
A sample was submitted for examination.
FACTS:
The merchandise under protest is an adjustable ring of base
metal, imported from Hong Kong, which may be worn by children and
adults alike. The ring features a raised skull head carved on
its rectangular crest. The ring was created as a promotional
"tie-in" to be distributed in connection with "The Phantom," a
major motion picture released by Paramount Pictures. The ring is
described to hold great nostalgic value for "baby-boomers" who
were comic-book collectors in their youth. Recognizing the
sentimental power of the skull head ring, Paramount commissioned
the importer to manufacture a version of the ring as a
promotional keepsake for moviegoers.
The merchandise was entered under subheading 7117.19.60 of
the Harmonized Tariff Schedule of the United States (HTSUS), a
duty-free provision for toy jewelry of base metal. However, the
entries were liquidated under subheading 7117.19.90, HTSUS, as
other imitation jewelry of base metal. Protestant claims that
the skull head ring is classifiable as toy jewelry under
subheading 7117.19.60, HTSUS, based on the premise that it is
designed and used for amusement.
The provisions under consideration are as follows:
7117 Imitation jewelry:
Of base metal, whether or not
plated with precious metal:
7117.11.00 Cuff links and studs
7117.19 Other:
Other:
7117.19.60 Toy jewelry valued
not over 8 cents per
piece...Free
7117.19.90 Other...11%
ISSUE:
Whether the adjustable skull head ring is classifiable as
toy jewelry under subheading 7117.19.60, HTSUS, or as other
imitation jewelry under subheading 7117.19.90, HTSUS.
LAW AND ANALYSIS:
Merchandise is classifiable under the HTSUS in accordance
with the General Rules of Interpretation (GRIs). GRI 1 states in
part that for legal purposes, classification shall be determined
according to the terms of the headings and any relative section
or chapter notes, and provided the headings or notes do not
require otherwise, according to GRIs 2 through 6. GRI 6 states
that the classification of goods in the subheadings of a heading
shall be determined according to the terms of those subheadings
and any related subheading notes and, mutatis mutandis, to the
above rules, on the understanding that only subheadings at the
same level are comparable. For the purposes of this rule, the
relative section, chapter and subchapter notes also apply, unless
the context otherwise requires.
Subheading 7117.19.60 is a recent addition to heading 7117,
HTSUS, the provision for imitation jewelry. In order to
determine whether the skull head rings are toy jewelry of
subheading 7117.19.60, HTSUS, we must understand the meaning of
this provision. We must look at the statutory language to find a
definition of the term "toy jewelry." Sturm, Ruth, Customs Law
and Administration, Vol. 2., 51.3, p. 33. The Notes to Chapter
95 and Chapter 71 together may help us define this elusive term.
Chapter 71, Note 9 states that
For the purposes of heading 7113, the expression
"articles of jewelry" means:
(a) Any small objects of personal adornment (gem-set
or not) (for example, rings, bracelets, necklaces,
brooches, earrings, watch chains, fobs, pendants,
tie pins, cuff links, dress studs, religious or
other medals and insignia). (Emphasis added)
Also, Note 11 to Chapter 71, HTSUS, states that
For the purpose 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 Notes to Chapter 71 thus provide a definition of the term
"imitation jewelry" which includes articles of personal
adornment. However, none of the Notes to this Chapter nor the
Notes to Chapter 95, which in general include the provisions for
toys, elaborate on the meaning of the term "toy jewelry."
We are aware of only one ruling which has dealt with
subheading 7117.19.60, HTSUS. In HQ 956524, dated January 31,
1995, Customs held that a "Polly Pocket Necklace Assortment" set,
consisting of an oval shaped, plastic pendant with a removable
"Polly Pocket" doll, was classifiable as toy jewelry. Applying
GRI 3(b) and the definition of imitation jewelry, Customs found
that the item's essential character was provided by the imitation
jewelry components classifiable in heading 7117, HTSUS. It
further found that the article, as a whole, functioned primarily
as an item of personal adornment, and retained this use
irrespective of the doll's presence or absence within the
pendant. Customs held that the articles were classifiable under
the new provision for toy jewelry, but without any discussion of
the new toy jewelry nomenclature.
The Harmonized Commodity Description And Coding System
Explanatory Notes (ENs) constitute the official interpretation of
the Harmonized System. While not legally binding on the
contracting parties, and therefore not dispositive, the ENs
provide a commentary on the scope of each heading of the
Harmonized System and are thus useful in ascertaining the
classification of merchandise under the System. Customs believes
the Notes should always be consulted. See T.D. 89-80, 54 Fed.
Reg. 35127, 35128 (Aug. 23, 1989).
The General ENs to Chapter 95, HTSUS, provide that Chapter
95 covers toys of all kinds whether designed for the amusement of
children or adults. It has been Customs position that the
amusement requirement means that toys should be designed and used
principally for amusement. Customs has cited various factors to
apply, which are suggestive but not dispositive, when determining
principal use for amusement. They include: general physical
characteristics, the expectation of the ultimate purchaser,
channels of trade, and the environment of sale (accompanying
accessories, manner of advertisement and display). See
Headquarters Rulings (HQ) 957829, 954690, 952296, 956524 and
956160, citing Additional U.S. Rule of Interpretation 1(a).
In these rulings, when called upon to determine whether an
import was imitation jewelry or a toy of Chapter 95, HTSUS,
Customs applied the foregoing principal use test and held that
the purpose of a toy is to give the enjoyment of a plaything and
generally carries little or no utilitarian value. Thus, in HQ
957829, dated July 3, 1996, Customs, after finding that a
"Fantastic Fingernails Nail Decorating Set" was principally used
as a toy of heading 9503, HTSUS, explained that the use of the
set's nails as objects of personal adornment was limited and that
the combination of the set's various items with the set's water
color polish suggested play. It concluded that the utilitarian
value or use of the nail decorating set as an object of personal
adornment was secondary to the play value of the items. See also
HQ 085020; HQ 954690; HQ 950700; HQ 088663; HQ 086407.
Protestant cites HQ 088663 to support the contention that
the skull head ring should be classified under subheading
7117.19.60, HTSUS, because the ring is designed and used
principally for amusement of children. Protestant claims that,
as with the merchandise in HQ 088663, the skull head ring's
packing suggests that it may be used by children to act out the
famous comic-book character. We note that the skull head ring
was sold in a packing that portrayed the phantom comic-book and
movie character with the words "The Phantom--The Official Ring"
printed on the top.
In HQ 088663 Customs considered the classification of a
"Wrestling Champion Medallion and Headband Set." The merchandise
in that case consisted of a large plastic chain and medallion and
a textile headband with the words "Wrestling Champion, Imperial
Wrestling League" imprinted in them. Customs found that the
items provided amusement to children through the age old play
activity of make believe and appealed to a child's sense of
imagination. It concluded that the plastic medallion was not
jewelry that would be worn everyday by a child and classified the
merchandise as a toy set of heading 9503, HTSUS.
Protestant seems to support the proposition that articles
described in the toy jewelry provision are articles principally
used for amusement. We disagree with this interpretation of the
new toy jewelry Nomenclature. It is our belief that the
determination of whether an article is a toy must be made at the
heading level. Therefore, 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 imitation jewelry provision, heading 7117, cannot
accommodate toys of Chapter 95, as Customs has defined them.
We are nevertheless presented with a provision for toy
jewelry at the eight-digit level. Since toy jewelry falls under
the provision for imitation jewelry, it is only logical to find
that toys described in this heading are different from toys of
Chapter 95. If an article meets the toy definition of Chapter
95's ENs, they would be classifiable in that Chapter, not in
heading 7117, HTSUS. A differentiation must exist to give
meaning to the phrase "toy jewelry." To this end we would look
to the play value of the article. We believe that to be
classifiable in the "toy jewelry" provision the article must be
"imitation jewelry" as defined in Notes 9(a) and 11 to Chapter
71, HTSUS, and manifest substantial play value. Accordingly, we
must determine whether the skull head ring is imitation jewelry
manifesting substantial play value.
We find that HQ 088663 is distinguishable from this matter
because the skull head ring is neither made of plastic nor forms
part of a set. The ring is an adjustable ring of base metal,
which is designed to be worn every day by children or adults. It
is this use that predominates over any play use the ring
provides. Since rings are articles specifically described in the
Notes and ENs to Chapter 71, the skull head ring is clearly an
article of personal adornment within heading 7117, HTSUS.
Furthermore, the evidence provided shows that the ring was
created as a promotional "tie-in" to be distributed in connection
with "The Phantom," a major motion picture released by Paramount
Pictures. The ring is described to hold great nostalgic value
for "baby-boomers" who were comic-book collectors in their youth.
Recognizing the sentimental power of the skull head ring,
Paramount commissioned the importer to manufacture a version of
the ring as a promotional keepsake for moviegoers. We thus
believe that the skull head ring was designed, marketed and
expected to be principally used by an adult as a memento and
article of personal adornment. As such, the ring does not
manifest substantial play value. We therefore conclude that the
skull head ring is classifiable under subheading 7117.19.90, as
imitation jewelry: Of base metal,...: Other: Other: Other.
HOLDING:
Under the authority of GRI 1, "The Phantom-The Official
Ring" is provided for in heading 7117, HTSUS. They are
classifiable in subheading 7117.19.90, HTSUS, as imitation
jewelry: Of base metal,...: Other: Other: Other. The rate of duty
is 11%.
This protest should be DENIED. In accordance with Section
3A(11)(b) of Customs Directive 099 3550-065, dated August 4,
1993, Subject: Revised Protest Directive, you should mail this
decision, together with the Customs Form 19, to the Protestant no
later than 60 days from the date of this letter. Any
reliquidation of the entry or entries in accordance with the
decision must be accomplished prior to mailing 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, the
Freedom of Information Act and other public access channels.
Sincerely,
John Durant, Director
Commercial Rulings Division