HQ 0955861 - Decision on Application for Further Review of Protest No. 1001-93-100783, filed February 10, 1993, concerning the classification of "Little Gems Stick-on Earrings." The items are imported from Taiwan. - United States International Trade Commision Rulings

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HQ 955861

February 9, 1994

CLA-2 CO:R:C:F 955861 GGD

CATEGORY: CLASSIFICATION

TARIFF NO.: 4911.91.4040

Area Director of Customs
JFK Airport Area
Building 178
Jamaica, New York 11430

RE: Decision on Application for Further Review of Protest No. 1001-93-100783, filed February 10, 1993, concerning the classification of "Little Gems Stick-on Earrings." The items are imported from Taiwan.

Dear Sir:

This is a decision on a protest timely filed, against your decision in the classification and liquidation in November 1992, of "Little Gems Stick-on Earrings" that were entered in April 1992.

FACTS:

You classified the merchandise under subheading 4911.91.4040, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), the provision for "Other printed matter, including printed pictures and photographs: Other: Pictures, designs and photographs: Printed not over 20 years at time of importation: Other: Other, Other." The goods were dutiable at 3.1 percent ad valorem. Protestant claims that the merchandise should be classified under subheading 9503.90.6000, HTSUSA, the provision for other toys (except models), not having a spring mechanism; and that the goods should be free of duty under subheading 9902.71.13, HTSUSA (which provides in pertinent part that, if subject to a general column one rate of duty, articles [except parts] provided for in heading 9503, valued not over five cents per unit, are duty free).

Although no samples were submitted, photographs of various packages of stick-on items, marketing information, copies of the invoice and entry documents, and communications with Customs in New York, indicate that the articles are comprised of plastic in a variety of shapes and colors, with one adhesive surface that may be attached to a wide array of surfaces in addition to the ears and skin, such as clothes, books, walls, etc. The items are resilient (i.e., they return to original form after being squeezed) and contain pictures and/or designs. The stick-on items of all types are imported in bulk.

ISSUE:

Whether the merchandise is properly classified in subheading 9503.90.6000, HTSUSA, as other toys not having a spring mechanism; in subheading 3926.40.0000, HTSUSA, as other articles of plastics, statuettes and other ornamental articles; or in subheading 4911.91.4040, HTSUSA, as other printed matter, pictures, designs and photographs.

LAW AND ANALYSIS:

Classification under the HTSUSA 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 GRI's may then be applied. The Explanatory Notes (ENs) to the Harmonized Commodity Description and Coding System, which represent the official interpretation of the tariff at the international level, facilitate classification under the HTSUSA by offering guidance in understanding the scope of the headings and GRIs.

Heading 9503, HTSUSA, applies to "other toys," i.e., all toys not specifically provided for in the other headings of chapter 95. Although the term "toy" is not defined in the tariff, the EN to chapter 95 indicates that a toy is an article designed for the amusement of children or adults. Although they may provide some amusement, the stick-on earrings are not designed for amusement, but for adornment, decoration, and ornamentation. Thus, the items may not be classified as other toys.

Heading 3926, HTSUSA, provides for "Other articles of plastics and articles of other materials of headings 3901 to 3914." The EN to heading 3926 indicates that the heading covers articles of plastics or other materials not elsewhere included or specified, including (among other items) statuettes and other ornamental articles.

Although the stick-on articles are designed to decorate and adorn, they also incorporate pictures and/or designs. Chapter 39 falls within section VII, HTSUSA. In pertinent part, note 2 to section VII states 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 are designed for decoration, it follows that any printing that they incorporate is consistent with their use as ornamental articles. Thus, the motifs and pictorial representations are more than incidental to the primary use of these items, requiring classification in chapter 49.

Heading 4911, HTSUSA, provides for "Other printed matter, including printed pictures and photographs." The EN to heading 4911 indicates that the heading covers all printed matter that is not more particularly covered by the preceding headings of the chapter. At the six-digit subheading level, 4911.91, HTSUSA, includes other printed matter, pictures, designs, and photographs. Since the "Little Gems Stick-on Earrings" contain pictures and/or designs, they are classified in subheading 4911.91.4040, HTSUSA.

HOLDING:

The "Little Gems Stick-on Earrings" are classified in subheading 4911.91.4040, HTSUSA, the provision for "Other printed matter, including printed pictures and photographs: Other: Pictures, designs and photographs: Printed not over 20 years at time of importation: Other: Other, Other." The general column one duty rate applicable to this merchandise in 1992 was 3.1 percent ad valorem.

The protest should be denied in full. A copy of this decision should be attached to the Form 19 to be returned to the protestant.

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 the decision must be accomplished prior to mailing of 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, Lexis, the Freedom of Information Act and other public access channels.

Sincerely,

John Durant, Director

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