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HQ 960822




June 17, 1998

CLA-2 RR:CR:GC 960822ptl

CATEGORY: CLASSIFICATION

TARIFF NO.: 3824.90.28

Port Director
U.S. Customs Service
1624 E. 7th Avenue
Suite 101
Tampa, FL 33605

RE: Protest 1801-97-100032, Chemiluminescent Products; HQs 086870, 087512, 555610; NY 818100.

Dear Port Director:

The following is our decision on Protest 1801-97-100032, against your classification under the Harmonized Tariff Schedule of the United States (HTSUS) of chemiluminescent products.

FACTS:

The merchandise was invoiced as "toy light sticks (22" necklaces)" and was bulk packed for shipment. The shipment consisted of 12,000 solid color pieces (3,000 green, 3,000 pink, 3,000 blue, and 3,000 yellow), and 36,000 tricolor pieces in which each piece had 3 separate solid color segments connected together. The tricolor pieces have either a green-orange-blue sequence or a green-pink-blue sequence. The connectors included with these products are hollow sections of clear plastic tubing, about one and three-quarter inch to two inches in length, and are used to join the light sticks at the ends. The light sticks, themselves, consist of clear plastic tubing about 3/16 inch (5mm) in diameter and twenty-two inches in length. Each tube is filled with two chemical preparations. One preparation is sealed in small glass ampules, spaced intermittently within the plastic tubing. The second preparation is used to fill the tube around the glass ampules. The consumer, when he wishes to activate the product, simply has to bend the tube in several places. When the plastic tube is bent, the glass ampule walls are broken, the two chemical preparations mix and the resultant mixture begins to fluoresce, producing a thin wand of soft glowing color. The chemical mixtures used in this type of product, also identified as containing cyalume chemicals, have been confirmed by the Customs Laboratory to contain over five percent by weight of aromatic or modified aromatic compounds.

The merchandise was entered on October 22, 1996, and the entry liquidated on February 7, 1997, under the provision for chemical products and preparations of the chemical or allied industries, other, other, in subheading 3824.90.28, HTSUS, with a general duty rate of 3› per kilogram plus 12.2 per cent ad valorem. A timely protest under 19 U.S.C. 1514 was received on March 12, 1997. The protestant has requested reliquidation of the entry under the provision for toys in Chapter 95, HTSUS, with a free general duty rate.

ISSUE: Whether chemiluminescent articles are classifiable as toys.

LAW AND ANALYSIS:

Merchandise is classifiable under the Harmonized Tariff Schedule of the United States (HTSUS) in accordance with the General Rules of Interpretation (GRIs). 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 GRIs may then be applied in order.

The headings under consideration are as follows:

3824 Prepared binders for foundry molds or cores; chemical products and preparations of the chemical or allied industries (including those consisting of mixtures of natural products), not elsewhere specified or included; residual products of the chemical or allied industries, not elsewhere specified or included:

3824.90 Other:

Other:

Mixtures containing 5 percent or
more by weight of one or more aromatic or modified aromatic substances:

3824.90.2800 Other.

7117 Imitation jewelry:
Of base metal, whether or not plated with precious metal:

7117.90 Other:

9503 Other toys; reduced-size ("scale") models and similar recreational models, working or not; puzzles of all kinds; parts and accessories thereof:

9503.90.00 Other

9503.90.0030 Other toys (except models), not having a spring mechanism

9505 Festive, carnival or other entertainment articles, including magic tricks and practical joke articles; parts and accessories thereof:

9505.90 Other:

9505.90.6000 Other

Protestant proposes that the light stick "necklace" be classified as a toy based on the assertion that the articles are sold and utilized as articles of amusement by adults and children. In support of this position, protestant has provided advertisements which indicate that the articles are marketed for use at parties, events and "fun-related" activities.

While it is true that the marketing of an article can help determine whether it falls into a particular category, marketing and advertising alone are not dispositive. Automobiles, liquor and cigarettes are advertised by showing people having fun while using the product, yet none of them are considered to be toys.

Headquarters Ruling 555610, dated February 1, 1991, discussed the nature of products classified as toys in heading 9503, HTSUS, as follows:

"Heading 9503, HTSUS, provides in pertinent part, for [o]ther toys.' In the Explanatory Notes, the general notes for Chapter 95 indicate that this chapter covers toys of all kinds whether designed for the amusement of children or adults.' This phrase designed for the amusement of' is generally understood to indicate that the use of an article will be a factor when classification as a toy is being considered."

Thus, Customs has held that a toy is an item designed to be used for amusement purposes. A toy is primarily a non-utilitarian article. The products here have many potential industrial, recreation and military uses in addition to being articles of amusement. See HQ 086870, dated July 20, 1990. Thus, classifying the articles as toys in heading 9503, HTSUS, is inappropriate.

In understanding the language of the HTSUS, the Harmonized Commodity Description and Coding System Explanatory Notes may be utilized. The Explanatory Notes (ENs), although not dispositive or legally binding, provide a commentary on the scope of each heading of the HTSUS, and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

These articles are made of chemical filled plastic tubing which is a waterproof, semi-durable product. The ENs to heading 9505, HTSUS, state that most of the items contemplated as festive, carnival or other entertainment articles by the heading would generally be of non-durable material. Thus, these "necklaces" do not fall within coverage of this heading.

From its marketing, a leading use would be for the purchaser to wear the article. When used in this manner, the "necklace" would not be a "toy", but rather an article of adornment used to draw attention to the wearer. However, even though it can be worn, the "necklace" would not be considered "imitation jewelry" of heading 7117, HTSUS. As shown by protestant's submission (advertisements which suggest use of the article as "glowing napkin rings", "glowing table center pieces", "glowing streamers", etc.), the light sticks can be used in many ways and are not dedicated to a principal use as would be required for classification in heading 7117, HTSUS.

We have seen by the examples in protestant's submission these products are capable of multiple uses. In HQ 086870, dated July 20, 1990, Customs also noted that light sticks "are used for a variety of applications, ... there is no single predominant use for light sticks,... ." Frequently, the light sticks have been imported in combination with another article. When activated, the light stick would impart a glow to the combined product. In these instances, the non-light stick component established the commercial identity of the resulting product for classification purposes.

However, in this instance, the light stick "necklaces" are being imported by themselves. The ENs to heading 3824, HTSUS, indicate that the preparations and chemical products of that heading include:

(34) Articles producing a lighting effect by the phenomenon of chemiluminescence, e.g., lightsticks in which the lighting effect is obtained by a chemical reaction between oxalic acid type esters and hydrogen peroxide in the presence of a solvent and a fluorescent compound.

Accordingly, the light sticks, which are plastic tubes containing two chemical mixtures, are classifiable as: prepared binders for foundry molds or cores; chemical products and preparations of the chemical or allied industries (including those consisting of mixtures of natural products), not elsewhere specified or included; residual products of the chemical or allied industries, not elsewhere specified or included: other: other: other, in subheading 3824.90.28, HTSUS. This holding is consistent with NY 818100, dated February 1, 1996, and HQ 087512, dated
November 21, 1990,

HOLDING:

For the reasons stated above, the protest should be DENIED.

In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, Revised Protest Directive, dated August 4, 1993, a copy of this decision attached to Customs Form 19, Notice of Action, should be provided by your office to the protestant no later than 60 days from the date of this decision and any reliquidations of entries in accordance with this decision must be accomplished prior thereto. Sixty days from the date of this decision the Office of Regulations and Rulings will take steps to make this decision available to Customs personnel via the Customs Rulings Module in ACS and the public via the Diskette Subscription Service, Freedom of Information Act and other public access channels.

Sincerely,

John Durant, Director
Commercial Rulings Division


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