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HQ 961400




November 25, 1998

CLA-2 RR:CR:GC 961400 MMC

CATEGORY: CLASSIFICATION

TARIFF NO.: 4911.91.4040; 7117.19.90; 7117.90.75

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. 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

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