CLA-2 RR:TC:GC 961396 MMC
Port Director of Customs
c/o Chief, Residual Liquidation and Protest Branch
6 World Trade Center, Room 761
New York, New York 10048
RE: Protest 1001-97-102734; imitation toy jewelry
Dear Port Director:
This is our decision on Protest 1001-97-102734, concerning
your action in classifying and assessing duty on articles
identified as imitation toy jewelry, under the Harmonized Tariff
Schedule of the United States (HTSUS). Samples as well as
literature from the protestant's catalog which contains pictures
and descriptions of the jewelry's retailing were submitted for
our review. In preparing this decision consideration was also
given to arguments presented by counsel for the protestant in an
additional submission made on March 6, 1998.
FACTS:
The subject articles are described as metal bracelets and
rings in assorted styles. The metal appears to be a spray
painted base metal. All of the jewelry has crude base metal
settings and "gem-stones" made of colored plastic. In addition,
the rings have adjustable bands and the bracelets have S-shaped
hook closures as opposed to clasps. Protestant indicates that
all of the jewelry is valued under 8 cents a piece. After
importation the articles are packaged in plastic egg-shaped
containers and then sold exclusively in coin-operated vending
machines.
Protestant asserts that the articles are classifiable under
heading 9503, HTSUS, as toys. The entry, made in 1996, was
liquidated on March 28, 1997, and a protest was timely filed on
April 11, 1997. 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
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 valued at under 8 cents per
piece, 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
metal bracelets and rings all meet this definition. As such,
they are clearly classifiable within the scope of heading 7117.
The only question which remains is whether the subject articles
are classifiable as "toy" jewelry for tariff purposes.
The term "toy" is not defined in the HTSUS. In Headquarters
Ruling Letter 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. 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 rings
and bracelets, namely the colored plastic pieces which pose as a
gemstone and the crude gold-painted metal setting and adjustable
bands and crude, irregular clasps indicate that the bracelets and
rings are used as 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 bracelets and rings are 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 these rings and bracelets are
not used in the same manner as imitation jewelry, that is to say,
they are 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, HTSUS.
As the bracelets and rings have significant play value they are
classifiable as imitation toy jewelry.
HOLDING:
The protest should be ALLOWED in full. The bracelets and
rings are classifiable under subheading 7117.19.60, HTSUS, as
"[i]mitation jewelry:[o]f base metal, whether or not plated with
precious metal: [o]ther: [t]oy jewelry valued not over 8 cents
per piece," with a 1996, column one duty rate of free.
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
Protestant no later than 60 days from the date of this letter.
Any reliquidation of the entry in accordance with this decision
must be accomplished prior to the mailing of the decision. Sixty
days from the date of this 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, Freedom of
Information Act and other public access channels. A copy of this
decision should be attached to the Customs Form 19, Notice of
Action on the protest, to be returned to the protestant.
Sincerely,
John Durant, Director
Commercial Rulings Division