CLA-2 RR:CTF:TCM H241332 EGJ
Priscilla R. Royster
John S. Connor, Inc.
799 Cromwell Park Drive, Suites A-G
Glen Burnie, MD 21061
Re: Revocation of NY N008876: Classification of a Laser Light Ring
Dear Ms. Royster:
This is in reference to your letter dated January 15, 2013, in which you requested reconsideration of New York Ruling Letter (NY) N008876, dated April 6, 2007, which was issued to your client, A&A Global Industries. NY N008876 concerned the tariff classification of a laser light ring under the Harmonized Tariff Schedule of the United States (HTSUS). In NY N008876, U.S. Customs and Border Protection (CBP) classified the laser light ring under heading 8513, HTSUS, as a flashlight. We have reviewed NY N008876 and find it to be in error. For the reasons set forth below, we hereby revoke NY N008876.
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, a notice of proposed action was published on June 24, 2015, in the Customs Bulletin, Vol. 49, No. 25. No comments were received in response to this notice.
FACTS:
In NY G86870, the subject merchandise is described as follows:
The merchandise under consideration is described as a Finger Tip Light. The housing of this light is constructed of clear plastic and is cylindrical in shape with a diameter of ½ inch, and measures approximately 1¼ inch long. Three nickel cadmium button cell batteries power a single light emitting diode (LED) bulb. A vinyl strap is attached to the housing of the light and may be used for slipping over a single finger.
In your reconsideration request, you provided additional information pertaining to the laser light ring. You stated that the ring is offered for sale in coin operated vending machines displayed in the front of toy stores, department stores, grocery stores and restaurants. The item is sold with markings “recommended for children over 3 years of age.” The small vinyl strap attached to the ring allows a child to wear the laser light on the child’s finger. You also provided a sample of the laser light ring, which is pictured below:
ISSUE:
Is the laser light ring classified under heading 7117, HTSUS, as imitation jewelry, under heading 8513, HTSUS, as a portable electric lamp, or under heading 9503, HTSUS, as a toy?
LAW AND ANALYSIS:
Classification under the Harmonized Tariff Schedule of the United States (HTSUS) 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 headings and legal notes do not otherwise require, the remaining GRIs may then be applied.
The HTSUS provisions at issue provide, in pertinent part, as follows:
7113 Articles of jewelry and parts thereof, of precious metal or of metal clad with precious metal.
* * *
7117 Imitation jewelry:
7117.90 Other:
Valued over 20 cents per dozen pieces or parts:
7117.90.60 Toy jewelry (except parts) valued not over 8 cents per piece.
* * *
8513: Portable electric lamps designed to function by their own source of energy (for example, dry batteries, storage batteries, magnetos), other than lighting equipment of heading 8512; parts thereof:
8513.10: Lamps:
8513.10.20 Flashlights.
* * *
9503.00.00 [D]olls, other toys:
* * *
Note 9 to Chapter 71 states as follows:
9. 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); and
(b) Articles of personal use of a kind normally carried in the pocket, in the handbag or on the person (for example, cigar or cigarette cases, snuff boxes, cachou or pill boxes, powder boxes, chain purses or prayer beads).
These articles may be combined or set, for example, with natural or cultured pearls, precious or semiprecious stones, synthetic or reconstructed precious or semiprecious stones, tortoise shell, mother-of-pearl, ivory, natural or reconstituted amber, jet or coral.
* * *
Note 11 to Chapter 71 states as follows:
11. For the purposes of heading 7117, the expression "imitation jewelry" means 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 1(p) to Section XVI (Chapters 84 – 85), states that:
1. This section does not cover:
(p) Articles of chapter 95.
* * *
Additional U.S. Rule of Interpretation 1(a), HTSUS, provides that:
1. In the absence of special language or context which otherwise requires:
(a) a tariff classification controlled by use (other than actual 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.
* * *
The Explanatory Notes (EN) to the Harmonized Commodity Description and Coding System represent the official interpretation of the tariff 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 at the international level. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
EN 85.13(7) states:
The lamps of this heading include:
(7) Fancy torches in the shape of pistols, lipsticks, etc. Composite articles composed of a lamp or torch and a pen, screwdriver, key ring, etc., remain classified here only if the principal function of the whole is the provision of light.
* * *
EN 95.03(D) states, in pertinent part:
Other toys.
This group covers toys intended essentially for the amusement of persons (children or adults)…These include:
…
(ii) Toy pistols and guns.
* * *
In NY N008876, CBP classified the instant laser light ring under heading 8513, HTSUS, as a portable electric lamp designed to function by its own source of energy. We agree that the laser light ring is portable, and that it is powered by the small button cell batteries encased inside the ring. Further, EN 85.13(7) states that fancy torches in the shape of pistols, lipsticks, etc., are classifiable as portable electric lamps. For these reasons, the instant laser light ring is described by heading 8513, HTSUS.
Next, we turn to heading 7117, HTSUS, which provides for imitation jewelry. Note 11 to Chapter 71 explains that imitation jewelry means “articles of jewelry,” defined in Note 9(a) to Chapter 71, that do not consist of cultured pearls, precious/semiprecious stones or precious metal. Note 9(a) states that, for the purposes of heading 7113, HTSUS, “articles of jewelry” are small articles of adornment, such as rings, earrings, bracelets, etc. Turning to the instant merchandise, we note that the laser light ring is a “ring,” which is one of the listed examples of articles of jewelry in Note 9(a) to Chapter 71. Further, the laser light ring does not include pearls, precious stones or precious metal. As such, the laser light ring is described as imitation jewelry of heading 7117, HTSUS.
In your reconsideration request, you assert that the laser light ring is properly classified as a toy. Heading 9503 provides, in pertinent part, for “other toys.” In Minnetonka Brands v. United States, 110 F. Supp. 2d 1020, 1026 (Ct. Int’l Trade 2000) (Minnetonka), the U.S. Court of International Trade (CIT) determined that the "class or kind" of articles considered "toys" under heading 9503 are articles whose principal use is "amusement, diversion or play, rather than practicality." Id. at 651. Thus, the CIT concluded that heading 9503, HTSUS, is a “principal use” provision within the meaning of Additional U.S. Rule of Interpretation 1(a) (AUSR 1(a)), HTSUS. Id.
Applying AUSR 1(a), the laser light ring must belong to the same class or kind of goods which have amusement as a principal use, i.e. toys. In United States v. Carborundum Co., 536 F.2d 373, 377 (1976), the U.S. Court of Customs and Patent Appeals stated that in order to determine whether an article is included in a particular class or kind of merchandise, the court must consider a variety of factors, including: (1) the general physical characteristics of the merchandise; (2) the channels, class or kind of trade in which the merchandise moves (where the merchandise is sold); (3) the expectation of the ultimate purchasers; (4) the environment of the sale (i.e., accompanying accessories and marketing); (5) usage, if any, in the same manner as merchandise which defines the class; (6) the economic practicality of so using the import; and (7) the recognition in the trade of this use. Id. While these factors were developed under the Tariff Schedule of the United States (predecessor to the HTSUS), the courts have also applied them under the HTSUS. See, e.g. Minnetonka, 110 F. Supp. 2d 1020, 1027; see also Aromont USA, Inc. v. United States, 671 F.3d 1310 (Fed. Cir. 2012), Essex Manufacturing, Inc. v. United States, 30 C.I.T. 1 (2006).
Examining the instant merchandise’s physical characteristics, we note that this is a light-up laser ring. EN 95.03(D)(ii) states that the heading includes toy guns and pistols. The instant laser ring does share some physical characteristics with toy guns and pistols. For example, in NY N020200, dated December 10, 2007, CBP classified a wrist-mounted dart shooter equipped with a laser beam targeting system as a toy of heading 9503, HTSUS. The laser ring also shares the same characteristics as toys with laser lights. For example, in NY N050418, dated February 13, 2009, CBP classified toy plastic gloves with a red LED laser beam (for Toy Story character Buzz Lightyear) in heading 9503, HTSUS.
The laser light ring is sold in coin-operated vending machines which are located in the front of toy stores, grocery stores, restaurants, etc. We note that toys are frequently sold out of coin-operated vending machines. As such, the channel of trade is the same as that for other toys. In addition, the economic practicality of only paying 25 cents, 50 cents or 75 cents for a toy is recognized by the trade, as well as by parents everywhere.
Further, the marketing for the laser ring includes the statement that they are intended for children who are at least three years old. Many toys are marketed with the age range for children who are the target market. As such, we find that the marketing, which is an example of the environment of sale, is the similar to marketing for other toys.
The ultimate purchaser of the laser ring is a child. The child will expect to wear the laser ring, most likely in a dark room or outside after dark. The child may also expect to “shoot” the laser beam at friends or siblings, as with a toy pistol or gun. The laser ring does not give off a concentrated beam of light, like the laser beam attachment to the dart gun in NY N020200. However, there is still amusement value in a laser light, like the one attached to the toy hands in NY N050418. For all of the foregoing reasons, we find that the laser light ring is principally used for amusement, diversion or play. As such, it is described as a toy of heading 9503, HTSUS.
The instant laser ring is classifiable in three different headings. As such, we must turn to GRI 3(a), which provides as follows:
When, by application of rule 2(b) or for any other reason, goods are, prima facie, classifiable under two or more headings, classification shall be effected as follows:
(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.
Heading 8513, HTSUS, and heading 7117, HTSUS, are eo nomine provisions, which provide for portable electric lamps and imitation jewelry respectively. Heading 9503, HTSUS, is a principal use provision. In The Pomeroy Collection, Ltd. v. United States, 559 F.Supp. 2d 1374, note 22 (Ct. Int’l Trade 2008), the CIT explained the difference between use provisions and eo nomine provisions as follows:
A “use” provision is “a provision describing articles by the manner in which they are used as opposed to by name,” while an eo nomine provision is one ‘in which an item is identified by name.’ Len-Ron Mfg. Co. v. United States, 334 F.3d 1304, 1308 (Fed. Cir. 2003) (Len-Ron Mfg. II). And there are two types of “use” provisions – “actual use” and “principal (formerly known as “chief”) use.” An “actual use” provision is satisfied only if “such use is intended at the time of importation, the goods are so used and proof thereof is furnished within 3 years after the date the, goods are entered.” See Additional U.S Rule of Interpretation (ARI) 1(b) (quoted in Clarendon Mktg., Inc. v. United States, 144 F.3d 1464, 1467 (Fed. Cir. 1998)). In contrast, a “principal use” provision functions essentially “as a controlling legal label, in the sense, that even if a particular import is proven to be actually used inconsistently with its principal use, the import is nevertheless classified according to its principal use.” Clarendon Mktg., 144 F.3d at 1467.
In Len-Ron Mfg. II, the CAFC reviewed the decision of the CIT in Len-Ron Mfg. v. United States, 118 F. Supp. 2d 1266 (Ct. Int’l Trade 2000) (Len-Ron Mfg. I), to classify a certain bag in an eo nomine provision, instead of classifying it in a principal use provision. 334 F.3d 1304,1313. While examining the CIT’s decision, the CAFC stated the following:
The courts have generally held that “where a product is equally described by both a “use” provision and an eo nomine provision, the “use” provision is typically held to be the more specific of the two. Len-Ron Mfg. I, 118 F. Supp. 2d at 1285. However, as the court also correctly pointed out, this is not a binding rule of law, but rather a "convenient rule of thumb for resolving issues where competing provisions are in balance." Id. (quoting Orlando Food, 140 F.3d at 1441 (internal quotation marks omitted)). The court went on to explain that this rule of thumb was only applicable where the alternative competing provisions were "in balance" or "equally descriptive" of the article being classified. Id. Observing that subheading 4202.12 "specifies a single article for proper classification," where subheading 4202.32 "is a broad provision encompassing a variety of articles with specific and independent uses," the trial court found that subheading 4202.12, which expressly identifies "vanity cases," was the more specific of the two.
Turning to the three relevant headings, we find that even though heading 9503, HTSUS, is a principal use provision, heading 7117, HTSUS, is the most specific of the three headings. Heading 7117, HTSUS, provides for imitation jewelry, which consists of a narrowly defined list of goods set forth in Note 9 to Chapter 71. Conversely, heading 9503, covers toys, which encompasses a broad range of products, as does heading 8513, HTSUS, which provides for portable lamps. Further, CBP has consistently classified rings that light up as imitation jewelry of heading 7117, HTSUS. See, e.g. NY H89185, dated April 2, 2002, NY I80756, dated April 18, 2002, NY I88948, dated December 3, 2002, and NY J81735, dated March 21, 2003. For all of these reasons, the laser light ring is properly classified as imitation jewelry of heading 7117, HTSUS.
HOLDING:
By application of GRI 3(a) and GRI 6, the laser light ring is classified under subheading 7117.90.60, HTSUS, which provides for “Imitation jewelry: Other: Valued over 20 cents per dozen pieces or parts: Toy jewelry (except parts) valued not over 8 cents per piece.” The 2015 column one, general rate of duty is free.
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 on the World Wide Web at www.usitc.gov.
EFFECT ON OTHER RULINGS:
NY N008876, dated April 6, 2007, is hereby revoked.
In accordance with 19 U.S.C. 1625(c), this ruling will become effective 60 days after publication in the Customs Bulletin.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division