OT:RR:CTF:CPMM H289680 APP
Center Director
Consumer Products and Mass Merchandising CEE
U.S. Customs and Border Protection
1 East Bay Street
Savannah, Georgia 31401
Attn: Brooke McCoy, Import Specialist
RE: Protest and Application for Further Review Number 1704-16-100758; Tariff classification of a jewelry creation kit, a charm bracelets kit, a pendant necklaces kit, and a ribbon bracelets kit
Dear Center Director:
The following is our decision regarding the Application for Further Review (“AFR”) of Protest Number 1704-16-100758, timely filed on August 15, 2016, on behalf of Target General Merchandise, Inc. (“protestant”). The AFR concerns U.S. Customs and Border Protection’s (“CBP”) classification, under the Harmonized Tariff Schedule of the United States (“HTSUS”), of a Cra-Z-Art Shimmer n’ Sparkle 4-in-1 jewelry creation kit, a Cra-Z-Art Shimmer and Sparkle Trendy Charm Bracelets kit, a Melissa and Doug Press-A-Pendant Necklaces kit, and a Melissa and Doug Charmed Ribbon Bracelets kit. No samples have been provided.
FACTS:
The Cra-Z-Art Shimmer n’ Sparkle 4-in-1 jewelry creation kit (DPCI 086-08-0341) makes a total of 12 bracelets (three each of four styles, shambala, friendship, rubber band, and fashion bead bracelets). It is recommended for children ages 6 to 15. The kit consists of 11 different types of beads, rubber bands, thread, cord, S-hooks to prevent the beads from falling, a rubber band loom and hook, and simple step-by-step instructions. The different style beads comprise almost half of the weight and cost of the merchandise. The rubberbands, loom, thread, and cords make up about 40-45% of the weight and cost of the merchandise with the balance in the hooks and instructions. Below is an image of the packaged kit claiming that the user can “create 4 different styles of fashion wristwear”:
The Cra-Z-Art Shimmer and Sparkle Trendy Charm Bracelets kit (DPCI 086-08-0341) makes four charm bracelets. It consists of eight assorted metal charms, four assorted gem charms, four adjustable metal loop bracelets, eight bead stoppers, four inspiration cards, and simple step-by-step instructions. The kit is recommended for children ages 6 and above. The necklaces are designed to “wear and share” and are advertised as “designer inspired” jewelry. Below is an image of the kit:
The Melissa and Doug Press-A-Pendant Necklaces kit (DPCI 086-00-2037) makes four pendant necklaces. The kit consists of five metal pendants, five metal ball chains, 11 decorative stickers, five dome stickers, ten metal ball chain caps, five claps, a decorative bead, and step-by-step instructions on how to put them all together. The necklaces are “wearable, giftable, and gorgeous.” Below is an image of the kit:
The Melissa and Doug Charmed Ribbon Bracelets kit (DPCI 086-00-2036) makes four ribbon bracelets. The kit consists of colorful cut-to-length textile ribbons, ten metal charms, ten jump rings, and step-by-step instructions on how to put them all together. It is for children ages 8 and above to make chiffon ribbon bracelets to wear and share. The bracelets are “wearable, giftable, and gorgeous.” Below is an image of the kit:
The August 15, 2016 Protest/AFR covers two entries filed on June 17, 2015, and liquidated on April 29, 2016. The jewelry craft kits were entered duty free under subheading 9503.00.0073, Harmonized Tariff Schedule of the United States Annotated (“HTSUSA”), which provided for “Tricycles, scooters, pedal cars and similar wheeled toys; dolls’ carriages; dolls, other toys; reduced-scale (“scale”) models and similar recreational models, working or not; puzzles of all kinds; parts and accessories thereof: “Children’s products” as defined in 15 U.S.C. § 2052: Other: Labeled or determined by importer as intended for use by persons: 3 to 12 years of age.” The entries were liquidated at a duty rate of 11% ad valorem under subheading 7117.19.9000, HTSUSA, which provided for “Imitation jewelry: Of base metal, whether or not plated with precious metal: Other: Rope, curb, cable, chain and similar articles produced in continuous lengths, all the foregoing, whether or not cut to specific lengths and whether or not set with imitation pearls or imitation gemstones, suitable for use in the manufacture of articles provided for in this heading: Valued over 33 cents per meter.”
ISSUE:
Whether the instant items are classified as imitation jewelry under heading 7117, HTSUS, or as other toys under heading 9503, HTSUS, or as a textile accessory under heading 6217, HTSUS.
LAW AND ANALYSIS:
CBP first notes that the matter is protestable under 19 U.S.C. § 1514(a)(2), as a matter on classification. The Protest/AFR was timely filed within 180 days of liquidation of the entries. See Miscellaneous Trade and Technical Corrections Act of 2004, Pub. L. 108-429, § 2103 (2)(B)(ii), (iii) (codified as amended at 19 U.S.C. § 1514(c)(3) (2006)).
Further review of Protest Number 1704-16-100758 is properly accorded to protestant pursuant to 19 C.F.R. § 174.24(b) because the decision against which the Protest was filed in this matter involves questions of law and fact that have not been ruled upon by the Commissioner of CBP or his designee, or by the Customs Courts.
Merchandise imported into the United States is classified under the HTSUS. Tariff classification is governed by the principles set forth in the General Rules of Interpretation (“GRIs”). The GRIs are part of the HTSUS and are considered statutory provisions of law for all purposes. GRI 1 requires that classification be determined first according to the terms of the headings of the tariff schedule and any relative section or chapter notes and, unless otherwise required, according to the remaining GRIs taken in order. 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 GRIs 2 through 6 may then be applied in order. GRI 2(a) provides that goods incomplete or unfinished articles (or articles presented unassembled or disassembled), which as presented have the essential character of complete or finished articles are to be classified as the complete or assembled article. Pursuant to GRI 6, classification at the subheading level uses the same rules, mutatis mutandis, as classification at the heading level.
The HTSUS provisions under consideration are as follows:
6217 Other made up clothing accessories; parts of garments or of clothing accessories, other than those of heading 6212:
7117 Imitation jewelry:
9503 Tricycles, scooters, pedal cars and similar wheeled toys; dolls’ carriages; dolls, other toys; reduced-scale (“scale”) models and similar recreational models, working or not; puzzles of all kinds; parts and accessories thereof:
Note 3(g) to chapter 71, HTSUS, states that this chapter does not cover goods of
section XI, HTSUS (textiles and textile articles).
Note 3(n) to chapter 71, HTSUS, states that this chapter does not cover, “Articles covered by note 2 to chapter 95.”
Note 9 to chapter 71, HTSUS, states:
For the purposes of heading 7113, the expression “articles of jewelry” means:
(a) Any small objects of personal adornment (for example, rings, bracelets, necklaces, brooches, earrings, watch chains, fobs, pendants, tie pins, cuff links, dress studs, religious or other medals and insignia); ….
Note 11 to chapter 71, HTSUS, defines “imitation jewelry” for purposes of heading 7117, HTSUS, as “articles of jewelry within the meaning of paragraph (a) of note 9 above (but not including buttons or other articles of heading 9606, or dress combs, hair slides or the like, or hairpins, of heading 9615), not incorporating natural or cultured pearls, precious or semiprecious stones (natural, synthetic or reconstructed) nor (except as plating or as minor constituents) precious metal or metal clad with precious metal.”
Note 4 to chapter 95, HTSUS, states:
Subject to the provisions of Note 1 above, heading 9503 applies, inter alia, to articles of this heading combined with one or more items, which cannot be considered as sets under the terms of General Interpretative Rule 3(b), and which, if presented separately, would be classified in other headings, provided the articles are put up together for retail sale and the combinations have the essential character of toys.
In interpreting the HTSUS, the Harmonized Commodity Description and Coding System Explanatory Notes (“ENs”) may be utilized. The ENs, though not dispositive or legally binding, provide commentary on the scope of each heading of the HTSUS, and are the official interpretation of the Harmonized System at the international level. See T.D. 89-80, 54 Fed.
Reg. 35127, 35128 (August 23, 1989).
The ENs to GRI 2(a) state, in relevant part:
… (V) The second part of Rule 2 (a) provides that complete or finished articles presented unassembled or disassembled are to be classified in the same heading as the assembled article. When goods are so presented, it is usually for reasons such as requirements or convenience of packing, handling or transport …. Unassembled components of an article which are in excess of the number required for that article when complete are to be classified separately.
EN 62.17 states, in relevant part:
This heading covers made up textile clothing accessories, other than knitted or crocheted, not specified or included in other headings of this Chapter or elsewhere in the Nomenclature. The heading also covers parts of garments or of clothing accessories, not knitted or crocheted, other than parts of articles of heading 62.12.
EN 71.17 provides, in relevant part:
For the purposes of this heading, the expression imitation jewellery, as defined in Note 11 to this Chapter, … also covers unfinished or incomplete articles of imitation jewellery (ear-rings, bracelets, necklaces, etc.), such as: (a) Semi-finished split rings, consisting of anodised aluminium wire, usually twisted or surface worked, whether or not fitted with a crude clasp, sometimes used as ear-rings without further working; (b) Ornamental motifs of base metal, whether or not polished, assembled by small links into strips of indefinite length.
EN 95.03 states, in relevant part:
(D) Other toys. This group covers toys intended essentially for the amusement of persons (children or adults) …. Collections of articles, the individual items of which if presented separately would be classified in other headings in the Nomenclature, are classified in this heading when they are put up in a form clearly indicating their use as toys (e.g., instructional toys such as chemistry, sewing, etc., sets).
Also, as provided by Note 4 to this Chapter, subject to Note 1 to this Chapter, this heading includes articles of the heading combined with one or more items which would be classified in other headings if presented separately, provided that:
(a) the combined items are put up together for retail sale, but the combination cannot be considered as a set under the terms of General Interpretative Rule 3(b); and (b) the combination has the essential character of toys. Such combinations generally consist of an article of this heading and one or more items of minor importance (e.g., small promotional articles or small amounts of confectionery).
Protestant asserts that the jewelry craft kits are classified as toys in heading 9503, under subheading 9503.00.0073, HTSUSA, via GRI 1. Protestant claims that the four kits are principally used for amusement of children, are not designed for long term use, and are marketed as toy craft kits in the toy department. Protestant argues that the resulting jewelry is flimsily constructed and the real fun comes from the creative process and not the finished product.
In Springs Creative Prods. Group v. United States, 2013 Ct. Intl. Trade LEXIS 112, Slip Op. 2013-107 (CIT 2013), the Court of International Trade (“CIT”) stated that “an object is a toy only if it is designed and used for diversion, amusement, or play, rather than for practical purposes.” The court held that the fabric panels designed for assembly by children, with or without the help of adults, into throw blankets were a toy because the resulting blanket had limited utility. The value of the merchandise came from its utility as a source of play and amusement while assembling the blanket rather than from use of the finished fleece throw itself. Additionally, the kit cost somewhat more than a throw blanket.
Consistent with the court’s holding in Springs Creative Prods. Group and previous rulings on the classification of combined jewelry making kits, the Cra-Z-Art Shimmer n’ Sparkle 4-in-1 jewelry creation kit is classified as a “toy” under heading 9503, HTSUS, because the utilitarian value of the final product is outweighed by the amusement, diversion, or play experienced in making that product. As the Cra-Z-Art Shimmer n’ Sparkle 4-in-1 jewelry creation kit is properly described as a “toy,” an analysis of its individual components packaged together for retail sale as a “set” pursuant to GRI 3(b) is unnecessary.
However, consistent with previous rulings on the classification of disassembled jewelry, the Cra-Z-Art Shimmer and Sparkle Trendy Charm Bracelets kit, Melissa and Doug Press-A-Pendant Necklaces kit, and Melissa and Doug Charmed Ribbon Bracelets kit are not classified as toys. The packages name only the article of jewelry to be assembled. The assembly is minimal and the components form a predetermined number of items. The unassembled jewelry components, such as metal loop bracelets, ribbons, charms, pendants and chains, do not appear to be of a lower quality or a smaller size than that for imitation jewelry marketed to children and teenagers. Rather, the unassembled jewelry components have the essential character of the complete or finished jewelry pursuant to GRI 2(a). The three kits exist simply to assemble inexpensive wearable jewelry for children and teenagers. The utilitarian value of these kits outweighs any amusement derived from the simple assembly. See Simon Mktg. v. United States, 29 CIT 1111, 1122, 395 F. Supp. 2d 1280, 1291 (2005) (holding that to “classify every eye-catching, child-friendly article as a toy, simply because it enhances a child’s imagination, is to unacceptably blur the HTSUS headings defeating their purpose and leading to absurd results.”).
Hence, the Cra-Z-Art Shimmer and Sparkle Trendy Charm Bracelets kit and the Melissa and Doug Press-A-Pendant Necklaces kit constitute unassembled imitation jewelry within the scope of heading 7117, HTSUS, as defined by note 9 to chapter 71, which defines “article of jewelry” to mean any small object of personal adornment: for example rings, bracelets, necklaces, brooches, earrings and pendants pursuant to GRI 2(a). The Melissa and Doug Charmed Ribbon Bracelets kit is an unassembled chiffon ribbon bracelet of heading 6217, HTSUS, which is excluded from classification under heading 7117, by application of note 3(g) to chapter 71. See NY C88287, dated June 24, 1998 (classifying a polyester wrist bracelet in heading 6217, HTSUS, specifically
under subheading 6217.10.95, HTSUS, and noting that textile bracelets can be considered clothing accessories).
HOLDING:
By application of GRIs 1 and 6, the Cra-Z-Art Shimmer n’ Sparkle 4-in-1 jewelry creation kit is classified under heading 9503, HTSUS, specifically under subheading 9503.00.0073, HTSUSA, which provides for “Tricycles, scooters, pedal cars and similar wheeled toys; dolls’ carriages; dolls, other toys; reduced-scale (“scale”) models and similar recreational models, working or not; puzzles of all kinds; parts and accessories thereof: “Children’s products” as defined in 15 U.S.C. § 2052: Other: Labeled or determined by importer as intended for use by persons: 3 to 12 years of age.” The column one, general rate of duty at the time of entry was Free.
By application of GRIs 2(a) and 6, the Cra-Z-Art Shimmer and Sparkle Trendy Charm Bracelets kit and the Melissa and Doug Press-A-Pendant Necklaces kit are classified under
heading 7117, HTSUS, specifically under subheading 7117.19.9000, HTSUSA, which provides for “Imitation jewelry: Of base metal, whether or not plated with precious metal: Other: Other: Other.” The column one, general rate of duty at the time of entry was 11% ad valorem.
By application of GRIs 2(a) and 6, the Melissa and Doug Charmed Ribbon Bracelets kit is classified under heading 6217, HTSUS, specifically under subheading 6217.10.95, HTSUS, which provides for “Other made up clothing accessories; parts of garments or of clothing accessories, other than those of heading 6212: Accessories: Other: Other.” The column one, general rate of duty at the time of entry was 14.6% ad valorem.
Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided at https://hts.usitc.gov/current.
You are instructed to grant the Protest with respect to the Cra-Z-Art Shimmer n’ Sparkle 4-in-1 jewelry creation kit and to deny it with respect to the remaining three kits.
In accordance with Sections IV and VI of the CBP Protest/Petition Processing Handbook (HB 3500-08A, December 2007, pp. 24 and 26), you are to mail this decision, together with the CBP Form 19, to the protestant, through its counsel, 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 Trade, Regulations and Rulings will make the decision available to CBP personnel and to the public on the Customs Rulings Online Search System (“CROSS”), at https://rulings.cbp.gov/, and other methods of public distribution.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division