CLA-2 RR:CR:GC 961121ptl
U.S. Customs Service
40 S. Gay Street
Baltimore, MD 21202
RE: Protest 1303-96-100295, Imitation toy jewelry.
Dear Port Director:
The following is our decision regarding protest 1303-96-100295 which concerns the classification of imitation gold jewelry under the Harmonized Tariff Schedule of the United States (HTSUS).
The merchandise consists of pieces of imitation jewelry constructed of non-precious metal. Samples of gold colored bracelets having an overall length of 6½ inches with a center double heart component measuring 1¼ inches were submitted. Also submitted as samples were metal, silver colored adjustable rings which had been stamped so that a “peace” symbol was outlined and centered on the article. The merchandise is imported in bulk packages and subsequently prepared for distribution and eventual sale through vending machines. Invoices, submitted with the protest, indicate that the cost of the articles is approximately 1.5 cents each. The protest encompasses two entries. The first entry, ...-....690-1, covering merchandise identified as “Gold Jewelry Mix Bulk” was liquidated on June 7, 1996, with classification under the provision for imitation jewelry in subheading 7117.19.9000, HTSUS, with duty at the general rate of 11 percent ad valorem. The second entry, ...-.....920-6, covering merchandise identified as “Gold Mix Bulk for Small Caps” was liquidated on April 26, 1996, also with classification under the provision for imitation jewelry in subheading 7117.19.9000, HTSUS, with duty at the general rate of 11 percent ad valorem. A timely protest under 19 U.S.C. 1514 was filed July 12, 1996. The protestant has requested reliquidation of the entries under the provision for toy jewelry valued not over 8 cents per piece in subheading 7117.19.6000, HTSUS, with a free general rate of duty.
What is the classification of imitation jewelry valued at under 8 cents per piece which is to be packaged in egg-like containers and sold exclusively in coin operated vending machines.
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 subheadings under consideration read as follows:
7117 Imitation jewelry:
Of base metal, whether or not plated with
* * *
7117.19.6000 Toy jewelry valued not over 8
cents per piece.
To determine whether the bracelets and rings are toy jewelry of subheading 7117.19.60, HTSUS, we must understand the meaning of this provision. We must look first to the statutory language to find a definition of the term “toy jewelry.” Sturm, Ruth, Customs Law and Administration, Vol. 2., § 51.3, p. 33, (1995). The Notes to Chapter 95 and Chapter 71 together help us define this term. Chapter 71, Note 9 states, in pertinent part, that:
For the purposes of heading 7113, the expression “articles of jewelry” means:
(a) Any small objects of personal adornment (gemset or not) (for example, rings, bracelets, necklaces, brooches, earrings, watch chains, fobs, pendants, tie pins, cuff links, dress studs, religious or other medals and insignia)[.] (Emphasis added)
Also, Note 11 to Chapter 71, HTSUS, states that:
For the purpose 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.
The Notes to Chapter 71 thus provide a definition of the term “imitation jewelry” which includes articles of personal adornment. However, none of the Notes to this Chapter nor the Notes to Chapter 95, which in general includes the provisions for toys, elaborate on the meaning of the term “toy jewelry.”
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).
Protestant refers to dictionary definitions in support of his contention that the goods should be classified as toys, with the definition of “imitation” being “to reproduce in form or color; copy; counterfeit” and that of “toy” being “little value; plaything; especially one for children.”
The General ENs to Chapter 95, HTSUS, provide that Chapter 95 covers toys of all kinds whether designed for the amusement of children or adults. It has been Customs position that the amusement requirement means that toys should be designed and used principally for amusement. They should be more than accessories which entertain but have little or no manipulative play value. Customs has cited various factors to apply, which are suggestive but not dispositive, when determining principal use for amusement. They include: general physical characteristics, the expectation of the ultimate purchaser, channels of trade, the environment of sale (accompanying accessories, manner of advertisement and display), use in the same manner as merchandise which defines the class, economic practicality of so using the import, and recognition in the trade of this use. See Headquarters Rulings (HQ) 957829, dated July 3, 1996, HQ 954690, dated September 5, 1995, HQ 952296, dated December 15, 1992, HQ 956524, dated January 31, 1995, and HQ 956160, dated August 31, 1994, citing Additional U.S. Rule of Interpretation 1(a).
In these rulings, when called upon to determine whether an import was imitation jewelry or a toy of Chapter 95, HTSUS, Customs applied the foregoing principal use test noting that the purpose of a toy is to give the enjoyment of a plaything and that it generally carries little or no utilitarian value. Thus, in HQ 957829, Customs, after finding that a “Fantastic Fingernails Nail Decorating Set” was principally used as a toy of heading 9503, HTSUS, explained that the use of the set’s nails as objects of personal adornment was limited and that the combination of the set’s various items with the set’s water color polish suggested play. We concluded that the utilitarian value or use of the nail decorating set as an object of personal adornment was secondary to the play value of the items. See also HQ 085020, dated October 30, 1989, HQ 954690, cited above, HQ 950700, dated August 25, 1993, HQ 088663, dated June 3, 1991, and HQ 086407, dated March 22, 1990.
It is our belief that the determination of whether an article is a toy must be made at the heading level. Therefore, if an article can be shown to be principally used for the amusement of children or adults, it will be classified in the appropriate headings and subheadings of Chapter 95, subject to the Section and Chapter Notes. If it is determined that an article is not principally used for amusement, it will be classifiable elsewhere in the HTSUS. Stated another way, the imitation jewelry provision, heading 7117, cannot accommodate toys of Chapter 95, as Customs has defined them.
We are nevertheless presented with a provision for toy jewelry at the eightdigit level. Since toy jewelry falls under the provision for imitation jewelry, it is only logical to find that toys described in this heading are different from toys of Chapter 95. If an article meets the toy definition of the ENs for Chapter 95, it would be classifiable in that Chapter, not in heading 7117, HTSUS. A differentiation must exist to give meaning to the phrase “toy jewelry.” To this end we would look to the play value of the article. We believe that to be classifiable in the “toy jewelry” provision the article must be “imitation jewelry” as defined in Notes 9(a) and 11 to Chapter 71, HTSUS, and manifest substantial play value. Accordingly, we must determine whether the bracelets and rings are imitation jewelry manifesting substantial play value.
In this instance, the physical characteristics of the rings and bracelets, namely the roughly stamped gold colored metal without any attempt at further decorative embellishment, the flimsy, crude, irregular clasps on the bracelets and the adjustable bands of the rings indicate that they are intended to be used as toy jewelry. The ultimate purchaser while being expected to wear the article, is expected to wear it during play. These articles could not be worn in situations where imitation jewelry of a more durable, detailed and substantial composition would be proper. Moreover, this article travels through channels of trade reserved for toys and novelty items. The bracelets and rings are intended to be sold through vending machines which are placed in super markets, drug and convenience stores; an environment of sale usually reserved for toys. Non-toy imitation jewelry is usually sold at other types of retail or department stores. Finally, in regard to economic practicality, the subject jewelry is unlikely to be used as general imitation jewelry as indicated by its 25-50 cent retail price at vending machines. This conclusion is supported by the inclusion of a value measurement in the language of subheading 7117.19.60, HTSUS. Accordingly, these bracelets and rings are classifiable as imitation toy jewelry. This is consistent with HQ 961396, dated August 24, 1998.
Imitation toy jewelry valued at under 8 cents per piece which is to be packaged in egg-like containers and sold exclusively in coin operated vending machines is classified in subheading 7117.19.60, HTSUS, which provides for imitation jewelry: of base metal, whether or not plated with precious metal: other: toy jewelry valued not over 8 cents per piece.
The protest should be ALLOWED. In accordance with Section 3A(11)(b) of Customs Directive 099 3550065, dated August 4, 1993, Subject: Revised Protest Directive, you are to mail this decision, together with the Customs Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing the decision.
Sixty days from the date of the decision, the Office of Regulations and Rulings will make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.ustreas.gov, by means of the Freedom of Information Act, and other methods of public distribution.
John Durant, Director
Commercial Rulings Division