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HQ 961396

August 24, 1998

CLA-2 RR:TC:GC 961396 MMC


TARIFF NO.: 7117.19.60

Port Director of Customs c/o Chief, Residual Liquidation and Protest Branch 6 World Trade Center, Room 761
New York, New York 10048

RE: Protest 1001-97-102734; imitation toy jewelry

Dear Port Director:

This is our decision on Protest 1001-97-102734, concerning your action in classifying and assessing duty on articles identified as imitation toy jewelry, under the Harmonized Tariff Schedule of the United States (HTSUS). Samples as well as literature from the protestant's catalog which contains pictures and descriptions of the jewelry's retailing were submitted for our review. In preparing this decision consideration was also given to arguments presented by counsel for the protestant in an additional submission made on March 6, 1998.


The subject articles are described as metal bracelets and rings in assorted styles. The metal appears to be a spray painted base metal. All of the jewelry has crude base metal settings and "gem-stones" made of colored plastic. In addition, the rings have adjustable bands and the bracelets have S-shaped hook closures as opposed to clasps. Protestant indicates that all of the jewelry is valued under 8 cents a piece. After importation the articles are packaged in plastic egg-shaped containers and then sold exclusively in coin-operated vending machines.

Protestant asserts that the articles are classifiable under heading 9503, HTSUS, as toys. The entry, made in 1996, was liquidated on March 28, 1997, and a protest was timely filed on April 11, 1997. The subheadings under consideration are as follows:

7117 Imitation jewelry: [o]f base metal, whether or not plated with precious metal:

7117.19 Other

7117.19.60 Toy jewelry valued not over 8 cents per piece

7117.19.90 Other

9503.90.0030 Other toys; reduced-size ("scale") models and similar recreational models, working or not; puzzles of all kinds; and parts and accessories thereof:
Other: Other: Other toys (except models), not having a spring mechanism


Whether the imitation jewelry valued at under 8 cents per piece, packaged in egg-like containers and sold exclusively in coin operated vending machines is classifiable as toy jewelry.


Classification under the HTSUS 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 GRIs may then be applied.

Notes 8 and 10 to Chapter 71, HTSUS, (now Notes 9 and 11) state, in pertinent part, that the scope of the term "imitation jewelry" includes any small object of personal adornment (gem-set or not) such as rings, bracelets, necklaces, brooches, earrings, watch chains, fobs, pendants, etc., not incorporating pearls, precious metal or precious or semiprecious stones. The subject metal bracelets and rings all meet this definition. As such, they are clearly classifiable within the scope of heading 7117. The only question which remains is whether the subject articles are classifiable as "toy" jewelry for tariff purposes.

The term "toy" is not defined in the HTSUS. In Headquarters Ruling Letter 959961 dated October 30, 1997, we indicated that the determination of whether an article is a "toy" for tariff purposes must be made at the heading level, specifically heading 9503. 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 scope of heading 7117, the imitation jewelry provision, does not include toys of Chapter 95, as the term "toy" has been interpreted for Chapter 95.

We were nevertheless presented with a provision for toy jewelry at the eight-digit, subheading level. Since toy jewelry falls under the provision for imitation jewelry, we found that toys described in this heading are different from "toys" of Chapter 95. If an article meets the toy definition it would be classifiable in Chapter 95, not heading 7117, HTSUS. Therefore, a differentiation must exist to give meaning to the subheading phrase "toy jewelry." To this end we stated that to be classifiable as "toy jewelry" an article must be "imitation jewelry" as defined in Notes 9(a) and 11 to Chapter 71, HTSUS, and manifest "substantial play value." Furthermore, any claim that an article has "substantial play value"must be corroborated by evidence of that articles' principal use.

When the classification of an article is determined with reference to its principal use, Additional U.S. Rule of Interpretation 1(a), HTSUS, provides that, in the absence of special language or context which otherwise requires, such 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. In other words, the article's principal use at the time of importation determines whether it is classifiable within a particular class or kind.

While Additional U.S. Rule of Interpretation 1(a), HTSUS, provides general criteria for discerning the principal use of an article, it does not provide specific criteria for individual tariff provisions. However, the U.S. Court of International Trade (CIT) has provided factors, which are indicative but not conclusive, to apply when determining whether merchandise falls within a particular class or kind. They include: general physical characteristics, the expectation of the ultimate purchaser, channels of trade, 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. United States v. Carborundum Company, 63 CCPA 98, C.A.D. 1172, 536 F. 2d 373 (1976), cert. denied, 429 U.S. 979.

In HRL 959961, we classified a base metal adjustable ring identified as the "Phantom Ring." The ring was created as a promotional "tie-in" to be distributed in connection with "The Phantom" a major motion picture release by Paramount Pictures. According to the protestant the ring had great nostalgic value for "baby-boomers" who were comic-book collectors in their youth. The ring was used as a promotional keepsake for moviegoers.

We determined that the subject "Phantom Ring" was not "toy jewelry" because while its general physical characteristics, adjustable band, etc. indicated its possible use as "toy jewelry" the expectation of the ultimate purchaser, the environment of sale and the manner as merchandise which defines the class all indicated the "Phantom Ring" was a promotional article or piece of memorabilia lacking sufficient "play value."

In this instance, the physical characteristics of the rings and bracelets, namely the colored plastic pieces which pose as a gemstone and the crude gold-painted metal setting and adjustable bands and crude, irregular clasps indicate that the bracelets and rings are used as toy jewelry. The ultimate purchaser while expecting to wear the article, is expecting to wear it during play. Moreover, this jewelry travels through channels of trade reserved for toys and novelty items and not those of the imitation jewelry. The bracelets and rings are sold in coin-operated vending machines which are placed in super markets, drug and convenience stores; an environment of sale usually reserved for toys and not one where general imitation jewelry is sold. Rather, other non-toy imitation jewelry is sold at jewelry and department stores. Additionally these rings and bracelets are not used in the same manner as imitation jewelry, that is to say, they are not worn to accessorize clothing, etc. but rather to imitate a "pretty lady or handsome man." Finally, the economic practicality of using the subject jewelry as general imitation jewelry is prohibitive as indicated by its value as well as its 25-50 cent retail price. A fact confirmed by the inclusion of a value measurement in the language of subheading 7117.19, HTSUS. As the bracelets and rings have significant play value they are classifiable as imitation toy jewelry.


The protest should be ALLOWED in full. The bracelets and rings are classifiable under subheading 7117.19.60, HTSUS, as "[i]mitation jewelry:[o]f base metal, whether or not plated with precious metal: [o]ther: [t]oy jewelry valued not over 8 cents per piece," with a 1996, column one duty rate of free.

In accordance with section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, this decision should be mailed by your office to the Protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with this decision must be accomplished prior to the mailing of the decision. Sixty days from the date of this decision, the Office of Regulations and Rulings will take steps to make the decision available to Customs personnel via the Customs Rulings Module in ACS and to the public via the Diskette Subscription Service, Freedom of Information Act and other public access channels. A copy of this decision should be attached to the Customs Form 19, Notice of Action on the protest, to be returned to the protestant.


John Durant, Director
Commercial Rulings Division

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