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HQ 967824




December 6, 2005

CLA-2 RR:CTF:TCM 967824 ASM

CATEGORY: CLASSIFICATION

TARIFF NO.: 8479.89.9897

Wanda Habrial
Logistics Specialist
Binney & Smith
1100 Church Lane
Easton, PA 18044

RE: Request for Reconsideration of NY L84669; “Girlfitti”® “Style Setter”® Rhinestone Applicator

Dear Ms. Habrial:

This is in response to a letter, dated June 21, 2005, requesting the reconsideration of New York Ruling Letter (NY) L84669, dated May 26, 2005, which classified the “Girlfitti”® ”Style Setter”® under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). A sample was submitted to Customs and Border Protection (CBP) and has been examined by this office.

FACTS:

The subject merchandise is identified as Item #03-4005. It is packaged for retail sale as the “Girlfitti”® “Style Setter”® and includes 1 plastic fastening machine, 60 plastic rhinestone gems with metal backings, 1 fabric belt, 1 white pencil, and 2 cardboard stencils each having simple circular patterns for use with the white pencil. The fastening machine is a manually operated plastic tool used to apply rhinestones to fabric. It is comprised of three overlapping plates that are hinged at the back by a plastic pin. The fastening machine sits on a table or hard surface while the rhinestone is placed, point-side-up, in the lower plate of the machine. The fabric is placed over the lower plate and the middle plate closes over the fabric. This locks the safety latch and sets the rhinestone stud in place. The user then firmly presses the button on the top plate, which causes the plate to descend over the middle plate and the pressure fastens the stud to the fabric.

ISSUE:

What is the proper classification for the merchandise?

LAW AND ANALYSIS:

Classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) is made in accordance with the General Rules of Interpretation (GRI). GRI 1 provides that the classification of goods shall be determined 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 heading and legal notes do not otherwise require, the remaining GRI may then be applied. The Harmonized Commodity Description and Coding System Explanatory Notes (“ENs”) constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the ENs 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).

In this instance, the “Girlfitti”® ”Style Setter”® consists of a manually operated plastic machine, plastic rhinestone gems with metal backings, a fabric belt, simple cardboard stencils, and a pencil, which are all packaged together in a cardboard/clear plastic box for retail sale at the time of importation. If classified separately, each of the components would be classifiable in separate headings under the HTSUSA. The plastic fastening machine may be classifiable in heading 8479, HTSUSA, which provides for “Machines and mechanical appliances having individual functions, . . . “. The importer has asserted that the plastic fastening machine is classifiable in heading 9503, HTSUSA, which provides for “Other toys; . . . “. The plastic rhinestone gems are classifiable in heading 3926, HTSUSA, which provides for “Other articles of plastics and articles of other materials of headings 3901 to 3914”. The fabric belt is classifiable in heading 6217, HTSUSA, which provides for “Other made up clothing accessories; parts of garments or of clothing accessories, other than those of heading 6212“. The cardboard stencils are classifiable in heading 4823, HTSUSA, which provides for “ . . . other articles of paper pulp, paper, paperboard, cellulose wadding or webs of cellulose fibers”. The pencil is classifiable in heading 9609, HTSUSA, which provides for “Pencils (other than those pencils of heading 9608), crayons, pencil leads, pastels, drawing charcoals, writing or drawing chalks and tailors’ chalks”. When goods are, prima facie, classifiable in two or more headings, they must be classified in accordance with GRI 3:

(a) The heading which provides the most specific description shall be preferred to headings providing a more general description. However, when two or more headings each refer to part only of the materials or substances contained in mixed or composite goods or to part only of the items in a set put up for retail sale, those headings are to be regarded as equally specific in relation to those goods, even if one of them gives a more complete or precise description of the goods.

(b) Mixtures, composite goods consisting of different materials or made up of different components, and goods put up in sets for retail sale, which cannot be classified by reference to 3(a), 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 this case, each of the headings refers to only part of the items contained in the retail packaged set. Pursuant to GRI 3(a), we must consider the headings equally specific in relation to the goods.

In accordance with GRI 3(b), we find that these components are properly classified as a set because they consist of goods put up in a set for retail sale. The components in this set are, prima facie, classifiable in different headings and have been put up in retail packaging suitable for sale directly to users without repacking. Furthermore, each set consist of articles that are put up together to carry out a specific activity, i.e., fastening decorative rhinestones on clothing and accessories.

In classifying the articles as a GRI 3(b) “set”, the goods are classified as if they consisted of the component that gives them their essential character. The EN to GRI 3(b) states:

(VII) In all these cases the goods are to be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable.

(VIII) The factor which determines the 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.

There have been several Court decisions on “essential character” for purposes of GRI 3(b). These cases have looked to the role of the constituent materials or components in relation to the use of the goods to determine essential character. See, Better Home Plastics Corp. v. United States, 916 F. Supp. 1265 (CIT 1996), affirmed, 119 F. 3d 969 (Fed. Cir. 1997); Mita Copystar America, Inc. v. United States, 966 F. Supp. 1245 (CIT 1997), rehearing denied, 994 F. Supp. 393 (CIT 1998), and Vista International Packaging Co., v. United States, 19 CIT 868, 890 F. Supp. 1095 (1995). See also, Pillowtex Corp. v. United States, 983 F. Supp. 188 (CIT 1997), affirmed, 171 F. 3d 1370 (Fed. Cir. 1999).

The essential character of these articles can be determined by comparing each component as it relates to the use of the product. The primary purpose of the “Girlfitti”® ”Style Setter”® is to affix decorative rhinestone gems to clothing and accessories. This is accomplished through proper use of the manually operated fastening machine. The fastening machine is essential to the function of the set because it is necessary to secure each rhinestone to the article of clothing or accessory. Clearly, the specialized fastening machine provides the essential character to the set.

In order to classify the manually operated fastening machine under the HTSUSA, we must determine whether it is classifiable as a “mechanical appliance” under heading 8479, HTSUSA, or as a “toy” which provides amusement under heading 9503, HTSUSA. Thus, the HTSUSA provisions under consideration for the manually operated fastening machine are as follows:

Machines and mechanical appliances having individual functions, not specified or included elsewhere in this chapter; parts thereof:

Other machines and mechanical appliances:

Other:

Other:

Other

Other

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

9503.70.0000 Other toys, put up in sets or outfits, and parts and accessories thereof

The term “toy” is not defined in the HTSUSA. However, the general EN for Chapter 95 states that this “Chapter covers toys of all kinds whether designed for the amusement of children or adults.” Although nothing in heading 9503 or the relevant Chapter notes explicitly states that an item's classification as a "toy" is dependent upon its use, the Court of International Trade has found inherent in various dictionary definitions of “toy” the notion that an object is a toy only if it is designed and used for amusement, diversion or play, rather than practicality. See Minnetonka Brands, Inc. v. United States, 110 F. Supp. 2d 1020, 1026 (CIT 2000). Because heading 9503, HTSUSA, is, in relevant part, a principal use provision, classification under this provision is controlled by the principal use "of goods of that class or kind to which the imported goods belong" in the United States at or immediately prior to the date of importation. Additional U.S. Rule of Interpretation 1(a), HTSUSA. See also Primal Lite, Inc. v. United States, 182 F.3d 1362, 1365 (Fed. Cir. 1999).

In order to determine whether an article is a “toy” within the meaning of Chapter 95, HTSUSA, it is necessary to compare whether the primary purpose is to amuse or to provide a utilitarian/functional quality. See Headquarters Ruling Letter (HQ) 966046, dated May 16, 2003 and HQ 963638, dated November 2, 2001. In Ideal Toy Corp. v. United States, 78 Cust. Ct. 28, C.D. 4688 (1977), the court stated that "[W]hen amusement and utility become locked in controversy, the question becomes one of determining whether the amusement is incidental to the utilitarian purpose, or the utility purpose is incidental to the amusement." Therefore, if the level of play value and amusement of the article is not sufficient to constitute its principal use, the article is not a toy. See United States v. Topps Chewing Gum, Inc., 440 F.2d 1384 (1973); HQ 229863, dated February 10, 2004.

Although there may be a degree of amusement in using the manually operated machine fastener, its primary purpose is to securely affix rhinestone gems to articles of clothing and fabric accessories. Furthermore, such a tool is specialized in its use and requires a degree of care because the rhinestone gems contain functional sharp points. In view of the foregoing, we find that the subject fastening machine is not a “toy” within the meaning of Chapter 95, HTSUSA. This decision is consistent with two recent CBP Rulings, HQ 967489, dated June 24, 2005, and HQ 967737, dated June 30, 2005, where it was determined that plastic hand held hair beading tools were not classifiable as “toys” within the meaning of Chapter 95, HTSUSA, because the primary purpose was utilitarian rather than for amusement. At this time we are in the process of reviewing NY K87306, dated June 28, 2004, which classified a similar set consisting of a stud tool, a plastic workstation, metal studs, rhinestones, a pencil, stencil pattern cards, and a sheet of instructions as a “toy” under subheading 9503.70.0000, HTSUSA.

In classifying the manually operated fastening machine in heading 8479, HTSUSA, we note that the EN for heading 8479, specifically states:

This heading is restricted to machinery having individual functions, which:

Is not excluded from this Chapter by the operation of any Section or Chapter Note. and (b) Is not covered more specifically by a heading in any other Chapter of the Nomenclature. and (c) Cannot be classified in any other particular heading of this Chapter since:
No other heading covers it by reference to its method of functioning, description or type. and (ii) No other heading covers it by reference to its use or to the industry in which it is employed. or (iii) It could fall equally well into two (or more) other such headings (general purpose machines).

In this case, the subject fastening machine is designed to perform an individual function, i.e., the permanent application of rhinestones to clothing and other textile accessories. Furthermore, it is not covered more specifically elsewhere in the Nomenclature and it cannot be classified in any other particular heading of Chapter 84, HTSUSA.

In view of the foregoing, we are affirming our decision in NY L84669, dated May 26, 2005, which classified the subject merchandise under subheading 8479.89.9897, HTSUSA, which provides for "Machines and mechanical appliances having individual functions, not specified or included elsewhere in this chapter; parts thereof: Other machines and mechanical appliances: Other: Other: Other, Other".

HOLDING:

The subject “Girlfitti”® “Style Setter”®, identified as Item # 03-4005, is classified in subheading 8479.89.9897, HTSUSA, which provides for "Machines and mechanical appliances having individual functions, not specified or included elsewhere in this chapter; parts thereof: Other machines and mechanical
appliances: Other: Other: Other, Other". The 2005 column one, general rate of duty for the subject article is 2.5 percent ad valorem.

Sincerely,


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