CLA 2 RR:CR:GC 962509 MMC
Mr. Scott E. Rosenow
Stein Shostak Shostak & O’Hara
1620 L Street, N.W., Suite 807
Washington, D.C. 20036-5606
RE: Guitar String Jewelry; PD D85041 revoked
Dear Mr. Rosenow:
This is in reference to your January 7, 1999, letter, on behalf of Imperial Toy Corporation, requesting reconsideration of Port Decision (PD) D85041 issued to you in December 22, 1998, concerning the classification of various pieces of imitation jewelry described as “Guitar String Jewelry” under the Harmonized Tariff Schedule of the United States (HTSUS). Samples of the jewelry were submitted for our review. In preparing this ruling we have considered the arguments submitted in your February 2, 1999, additional submission.
FACTS:
The subject articles consist of imitation jewelry identified as the following:
GUITAR STRING JEWELRY
Style Number
Description
Value per piece
3910
White and pink colored metal bracelets and rings
bracelet 4¢; rings 3¢
3922
Purple and silver colored metal bracelets and rings
bracelet 4¢; rings 2¢
3915
Lime green colored metal bracelet
bracelet 9¢
3914
Gold colored, metal necklace, bracelet and ring
necklace 20¢; bracelet 9¢; ring 7¢
All of the jewelry is packaged on bright pink cardboard decorated with “confetti” edging. The cardboard contains the following phrase: “ Petite Miss Guitar String Bracelets Pretty Cool, Pretty Cute, Pretty You!” Pictures of three young girls appear as well, wearing the imitation jewelry.
A letter from the importer states that he has been in the toy business exclusively for 30 years, that the jewelry is exhibited at toy fairs and that it is sold exclusively to toy stores and to toy buyers of mass merchandisers. Additionally, a letter from a mass merchandiser’s toy buyer indicates the following: that the buyer only purchases toys for the retailer and isn’t responsible for purchasing other category of goods; that the subject merchandise is purchased for sale to little girls, and is intended for girls to enhance their “dress-up” play and allow a creative means of expressing their love of rock music; that the subject articles are bought and marketed only for the toy section, not the jewelry section of the retailer’s store.
ISSUE:
Whether the guitar string jewelry 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. 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
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 release of the movie “The Phantom.” It was claimed that 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. In that ruling it was 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 ultimate purchaser while expecting little girls to wear the article, is expecting them to wear it during play. Moreover, this jewelry travels through channels of trade reserved for toys and not those of the imitation jewelry. The jewelry is sold in an environment of sale reserved for toys and not one where general imitation jewelry is sold. 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.” 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, and 962050 dated September 25, 1998.
HOLDING:
Style Nos. 3910 and 3922 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:[o]ther: [t]oy jewelry valued not over 8 cents per piece.
Style Nos. 3914 and 3915 are classifiable under subheading 7117.19.90, HTSUS, as [i]mitation jewelry: [o]f base metal whether or not plated with precious metal: [o]ther:[o]ther: [o]ther.
PD D85041 is revoked.
Sincerely,
John Durant, Director
Commercial Rulings Division