CLA-2 RR:CR:GC 960822ptl
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