CLA-2 RR:CR:GC 961400 MMC
Mr. Gordon C. Anderson
C.H. Robinson International, Inc.
8100 Mitchell Road
Eden Prairie, MN 55344-2231
RE: Various "Stick-On Earrings", "Stick-On Earrings" and
Plastic Imitation Gemstone Rings Sets; Metal Rings with
adjustable bands; NYRL C83853 revoked
Dear Mr. Anderson:
This is in reference to your February 17, 1998, letter, on
behalf of Hanover Accessories, requesting reconsideration of New
York Ruling Letter (NYRL) C83853 issued to you on February 5,
1998, concerning the classification of various "Stick-On
Earrings", plastic imitation gemstone rings and metal rings with
adjustable bands, under the Harmonized Tariff Schedule of the
United States (HTSUS). Samples of the "Stick-On Earrings" and
metal rings were submitted for our review.
Pursuant to section 625(c)(1) Tariff Act of 1930 [19 U.S.C.
1625(c)(1)], as amended by section 623 of Title VI (Customs
Modernization) of the North American Free Trade Agreement
Implementation Act, (Pub. L. 103-182, 107 Stat. 2057, 2186), notice
of the proposed modification of NYRL C83853, was published on
October 14, 1998, in the Customs Bulletin. One comment was received
in response to this notice.
In preparing this ruling we have considered the arguments
presented in our April 2, 1998, meeting, as well as those submitted
in your October 22, 1998, comment. Based on the information
contained in the comment, Customs is now revoking NYRL C83853.
FACTS:
The first two articles are identified as Item #636002 and Item
#648010. They consist of 30 pairs of "Stick-On Earrings" with a
variety of designs, shapes and printed motifs. The "earrings" are
plastic stickers printed on plastic film. The stickers are pre-cut
and consist of film heat sealed over a foam inner layer giving the
stickers a "three-dimensional" aspect. Additionally, they have an
adhesive back which allows the stickers to be peeled from a release
paper. They are displayed on a paperboard retail card resembling a
calendar. The approximate FOB unit cost is 20 cents.
Item #110/306 consists of 15 pairs of "Snowden" stick-on
earrings all displaying a variety of designs and shapes in a
Christmas motif. They are displayed on a paperboard retail card
with a Christmas design. The approximate FOB unit price per card
is 37 cents or 1.2 cents for each earring.
Item #648106 consists of seven pairs of "Stick-On Earrings"
and seven matching plastic imitation gemstone rings. The earrings
and rings are displayed on a paperboard retail card resembling a
weekly calendar, two earrings and a ring to be worn each day. The
approximate FOB unit cost for the set is 53 cents; the rings are
6.5 cents each and the fourteen earrings total 7.5 cents.
Item #647-761consists of six assorted metal rings with
adjustable bands in a heart shaped container. The container is
made of pink plastic with a clear hinged cover. A form fitted
white foam piece which holds the rings has been inserted into the
container. A textile cord is attached to the top of the container.
A paperboard header card is attached to the cord. A paper tag
attached to the cord states "L.J. Kids & Co. " and " by Hanover
Accessories." A little cartoon drawn girl appears on the front,
with various pieces of jewelry identified on her body. The
estimated FOB unit value of the item will be either 56 cents a set
(8 cents per ring and 8 cents for the heart container), or 62 cents
a set (8 cents per ring and 14 cents for the heart container).
ISSUE:
Whether the various "Stick-On Earrings", plastic imitation
gemstone rings and metal rings with adjustable bands are
classifiable as imitation toy jewelry.
LAW AND ANALYSIS:
Classification under the HTSUS is made in accordance with the
General Rules of Interpretation (GRI's). The systematic detail of
the HTSUS 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
headings and subheadings under consideration are as follows:
4911 [o]ther printed matter, including printed pictures and
photographs
7117 [i]mitation jewelry
[o]f base metal, whether or not plated with precious
metal:
7117.19 [o]ther
7117.19.60 [t]oy jewelry valued not over 8 cents per
piece
7117.19.90 [o]ther
7117.90 [o]ther
[v]alued over 20 cents per dozen pieces or parts
[o]ther
7117.90.75 [o]f plastics
9503 [o]ther toys; reduced-size ("scale") models and similar
recreational models, working or not; puzzles of all
kinds; and parts and accessories thereof
In Headquarters Ruling Letter (HRL) 955861 dated February 9,
1994, and HRL 954158 dated September 16, 1993, we classified,
respectively, an article identified as "Little Gems Stick-On
Earrings" and other "Stick-On Earrings" with pictures, designs,
letters, symbols, characters, etc.. In both cases, the stick-ons
were comprised of film heat sealed over a foam inner layer giving
the stickers a "three-dimensional" aspect and had an adhesive
surface that could be attached to a wide array of surfaces in
addition to the ears and skin. They came in a variety of shapes
and colors and in the instances relative to this case, contained
pictures, designs, letters, symbols, characters, etc. They were
imported in bulk.
In both cases, we held that although the earrings may have
provided some amusement, they were not designed for amusement, but
for adornment, decoration, and ornamentation. Thus, they were not
classified as other toys. Although the "Stick-On Earrings" were
plastic and designed to decorate and adorn, they also incorporated
pictures and/or designs. Note 2 to section VII, HTSUS, states, in
pertinent part, 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 were designed for decoration,
it followed that any printing that they incorporated was consistent
with their use as ornamental articles. Thus, we held that the
motifs and pictorial representations were more than incidental to
the primary use of these items, requiring classification in chapter
49, HTSUS, specifically, subheading 4911.91.4040, HTSUS, the
provision for "[o]ther printed matter, including printed pictures
and photographs: [o]ther: [p]ictures, designs and photographs:
[p]rinted not over 20 years at time of importation: [o]ther:
[o]ther, [o]ther." In this case, items #636002, #648010 and
#110/316 are virtually identical in description and use.
Therefore, they are also classifiable under subheading
4911.91.4040, HTSUS.
Item #648106, consists of seven pairs of "Stick-On Earrings"
and seven matching plastic imitation gemstone rings. The "Stick-On
Earrings" are described by heading 4911, HTSUS. Notes 9 and 11 to
Chapter 71, HTSUS, 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. As the plastic rings are listed in the Notes, they
clearly fall within the scope of heading 7117. However, the
question remains whether the plastic rings are classifiable as
"toy" jewelry for tariff purposes.
The term "toy" is not defined in the HTSUS. In HRL 959961
dated October 30, 1997, we indicated 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
article's principal use. See also HRL 961396 dated August 24,
1998.
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, Courts have 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 importer 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 plastic
rings are inconclusive as to the ring's classification, because
both "regular" and toy imitation jewelry may have an adjustable
band and plastic as a constituent material. As no sample or
additional Carborundum information such as expectation of the
ultimate purchaser, channels of trade, environment of sale or use
in the same manner as toy imitation jewelry, were provided for the
plastic rings, we defer to the classification provided in NYRL
C83853, subheading 7117.90.75, HTSUS. We note that while, the
economic practicality of using the plastic rings as general
imitation jewelry may be suspect because of their 6.5 cent value,
such evidence by itself, cannot alter the original classification.
Because the "Stick-On Earrings" and plastic rings are
described by two different headings, they cannot be classified
according to GRI 1. When goods cannot be classified by applying
GRI 1, and if the headings and legal notes do not otherwise
require, the remaining pertinent GRIs are applied.
GRI 3 (b) states, in pertinent part, that:
(b) Mixtures, composite goods consisting of different
materials or made up of different components, and goods
put up in sets for retail sale,... shall be classified as
if they consisted of the material or component which
gives them their essential character, insofar as this
criterion is applicable.
In understanding the language of the HTSUS, the Harmonized
Commodity Description and Coding System Explanatory Notes may be
consulted. The Explanatory Notes (EN), although not dispositive,
are to be used to determine the proper interpretation of the HTSUS.
54 Fed. Reg. 35127, 35128 (August 23, 1989). EN X to GRI 3(b),
indicates that for purposes of the GRI 3(b), the term "goods put up
in sets for retail sale" means goods which:
(a) consist of at least two different articles which are prima
facie, classifiable in different headings...;
(b) consist of products or articles put up together to meet a
particular need or carry out a specific activity; and
(c) are put up in a manner suitable for sale directly to users
without repacking (e.g., in boxes or cases or on boards).
As previously noted, the subject goods consist of components which
are prima facie classifiable under more than one heading.
Additionally, the components are put up together to carry out the
specific activity of adornment and the importer has indicated that
the earrings and imitation plastic gemstone rings are displayed on
a paperboard retail card resembling a weekly calendar. As such,
item #648106 is considered a "set" for tariff purposes.
Accordingly, we must determine whether the earrings or rings impart
the essential character to the sets.
In general, essential character has been construed to mean
that attribute which strongly marks or serves to distinguish what
an article is; that which is indispensable to the structure, core
or condition of the article. In addition, EN (VIII) to GRI 3(b),
at page 4, states that the factors which help determine essential
character will vary as between different kinds of goods. It may,
for example, be determined by the nature of the material or
component, its bulk, quantity, weight or value, or by the role of a
constituent material in relation to the use of the goods.
We are of the opinion that neither the earrings or rings of
the set provides an essential character. Both work together for
the purpose of personal adornment. Because none of the components
constitutes an essential character, GRI 3(c) must be applied.
GRI 3(c) states, "[w]hen goods cannot be classified by
reference to 3(a) or 3(b), they shall be classified under the
heading which occurs last in numerical order among those which
equally merit consideration." The heading which appears last in
numerical order for the "Stick-On Earrings" set is heading 7117,
HTSUS, within which is subheading 7117.90.75, HTSUS, which provides
for [i]mitation jewelry: [o]ther: [o]ther: [v]alued over 20 cents
per dozen pieces or parts: [o]ther: [o]f plastics, which describes
item # 648106.
Item #647-761, consists of six assorted metal rings with
adjustable bands in a heart-shaped container. The container is
made of pink plastic with a clear hinged cover which opens to a
form fitted white foam fabric covered ring holder which holds the
rings. A textile cord is attached to the top of the container. A
paper tag attached to the cord states "L.J. Kids & Co. " and " by
Hanover Accessories. A little cartoon drawn girl appears on the
front. Various pieces of jewelry are identified on her body.
As previously noted, 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.
The physical characteristics of these rings indicate that they
are designed as articles of personal adornment for girls, not
principally to amuse. Their constituent metal is substantial and
the gold coloring appears to be a "coating" as opposed to being
merely spray painted. Based upon our own empirical evidence, it is
our understanding that the article will be sold in the children's
clothing section of a department store as accessories to the
various outfits. Such an environment of sale leads an ultimate
purchaser to believe that the articles are used for the adornment
of children and not as play articles to "imitate" a grown man or
women's jewelry use. Use of the jewelry for personal adornment is
a use which defines the "general" imitation jewelry class, not the
toy jewelry class. The fact that the articles adorn children does
not alter their classification. Rather it is that the articles
are used for personal adornment, not "play" that indicates that
they belong to the "general" imitation jewelry class. While, the
economic practicality of using the metal rings as general imitation
jewelry may be suspect because of their 8 cent value, such evidence
by itself, does not alter their classification. The metal rings
are classified in subheading 7117.19.90, HTSUS.
HOLDING:
The applicable subheading for the stick-on earrings, items
#636002, 648010, 110/316, is 4911.91.4040, HTSUS. The 1998 rate of
duty is 1.9 percent ad valorem.
The applicable subheading for the "Stick-On Earrings" and
plastic imitation gemstone rings sets, identified as item #648106,
will be 7117.90.7500, HTSUS, which provides for imitation jewelry:
other: other: valued over 20 cents per dozen pieces or parts:
other: of plastics. The 1998 rate of duty is free.
The applicable subheading for the metal rings and heart shaped
container, item #647-761, will be 7117.19.9000, HTSUS, which
provides for imitation jewelry: of base metal, whether or not
plated with precious metal: other: other: other. The 1998 rate of
duty is 11 percent ad valorem.
NYRL C83853 is revoked. In accordance with 19 U.S.C.
1625(c)(1), this ruling will become effective 60 days after its
publication in the Customs Bulletin. Publication of rulings or
decisions pursuant to 19 U.S.C. 1625(c)(1) does not constitute a
change of practice or position in accordance with section 177.10
(c)(1), Customs Regulations [19 CFR 177.10(c)(1)].
Sincerely,
John Durant, Director
Commercial Rulings Division