CLA-2 CO:R:C:F 954545 GGD
Mr. Michael Schweinberg
Gymboree Corporation
700 Airport Boulevard, Suite 200
Burlingame, California 94010-1912
RE: "Earstickers;" Decorative Stick-on Items
Dear Mr. Schweinberg:
This letter is in response to your inquiry of May 26, 1993,
concerning the classification under the Harmonized Tariff
Schedule of the United States Annotated (HTSUSA), of
"earstickers," decorative stick-on items imported from Taiwan. A
sample was submitted with your inquiry.
FACTS:
The sample article consists of thirty pairs of stick-on
items attached to one colorful card wrapped in clear plastic.
The card has a hole at the top allowing placement on a hook for
retail display. The items are comprised of plastic in a variety
of shapes and colors, with one adhesive surface that may be
attached to a wide array of surfaces in addition to the ears and
skin, such as clothes, books, walls, etc. The items are
resilient (i.e., they return to original form after being
squeezed) and may contain pictures, designs, characters, symbols,
letters, etc.
ISSUE:
Whether the merchandise is properly classified in subheading
9503.90.6000, HTSUSA, as other toys not having a spring
mechanism; in subheading 3926.90.9590, HTSUSA, as other articles
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of plastics, other; in subheading 3926.40.0000, HTSUSA, as other
articles of plastics, statuettes and other ornamental articles;
in subheading 4911.91.4040, HTSUSA, as other printed matter,
pictures, designs and photographs; or in subheading 4911.99.8000,
HTSUSA, as other printed matter, other than pictures, designs and
photographs.
LAW AND ANALYSIS:
Classification under the HTSUSA is made in accordance with
the General Rules of Interpretation (GRIs). The systematic
detail of the harmonized system 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 Explanatory Notes (ENs) to the Harmonized
Commodity Description and Coding System, which represent the
official interpretation of the tariff at the international level,
facilitate classification under the HTSUSA by offering guidance
in understanding the scope of the headings and GRIs.
Heading 9503, HTSUSA, applies to "other toys," i.e., all
toys not specifically provided for in the other headings of
chapter 95. Although the term "toy" is not defined in the
tariff, the EN to chapter 95 indicates that a toy is an article
designed for the amusement of children or adults. Although they
may provide some amusement, the earstickers are not designed for
amusement, but for adornment, decoration, and ornamentation.
Thus, the items may not be classified as other toys.
Heading 3926, HTSUSA, provides for "Other articles of
plastics and articles of other materials of headings 3901 to
3914." The EN to heading 3926 indicates that the heading covers
articles of plastics or other materials not elsewhere included or
specified, including (among other items) statuettes and other
ornamental articles.
At the six-digit subheading level, 3926.40, HTSUSA, includes
other articles of plastics, statuettes and other ornamental
articles, while 3926.90 covers other articles of plastics, other.
In other words, subheading 3926.90 is a basket provision for
other articles of plastics less specifically described than
articles classifiable in subheadings 3926.10-.40. In light of
the fact that the stick-on articles are designed to decorate and
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adorn, the "earstickers" that contain no printed matter (i.e., no
pictures, designs, characters, symbols, letters, etc.) are
classified in subheading 3926.40.0000, HTSUSA, as other articles
of plastics, statuettes and other ornamental articles.
As noted in the facts, some of the stick-on items may
contain pictures, designs, characters, symbols, letters, etc.
Chapter 39 falls within section VII, HTSUSA. In pertinent part,
note 2 to section VII states 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 items are
designed for decoration, it follows that any printing that they
incorporate is consistent with their use as ornamental articles.
Thus, the motifs, characters or pictorial representations are
more than incidental to the primary use of these items, requiring
classification in chapter 49.
Heading 4911, HTSUSA, provides for "Other printed matter,
including printed pictures and photographs." The EN to heading
4911 indicates that the heading covers all printed matter that is
not more particularly covered by the preceding headings of the
chapter. At the six-digit subheading level, 4911.91, HTSUSA,
includes other printed matter, pictures, designs, and
photographs, while 4911.99 covers other printed matter, other
than pictures, designs, and photographs (such as characters,
symbols, and letters). Therefore, the "earstickers" which bear
printed matter consisting of pictures or designs are classified
in subheading 4911.91.4040, HTSUSA, while the items that include
printed matter in the form of characters, symbols, or letters are
classified in subheading 4911.99.8000, HTSUSA.
HOLDING:
The "earstickers" that incorporate no printed matter are
classified in subheading 3926.40.0000, HTSUSA, the provision for
"Other articles of plastics and articles of other materials
of headings 3901 to 3914: Statuettes and other ornamental
articles." The general column one duty rate applicable to this
merchandise is 5.3 percent ad valorem.
The "earstickers" that incorporate other printed matter
consisting of pictures or designs are classified under subheading
4911.91.4040, HTSUSA, the provision for "Other printed matter,
including printed pictures and photographs: Other: Pictures,
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designs and photographs: Printed not over 20 years at time of
importation: Other: Other, Other." The general column one duty
rate applicable to this merchandise is 3.1 percent ad valorem.
The "earstickers" that incorporate other printed matter
consisting of characters, symbols, or letters are classified
under subheading 4911.99.8000, HTSUSA, the provision for "Other
printed matter, including printed pictures and photographs:
Other: Other: Other: Other." The general column one duty rate
applicable to this merchandise is 4.9 percent ad valorem.
Sincerely,
John Durant, Director
Commercial Rulings Division