HQ 955861

February 9, 1994

CLA-2 CO:R:C:F 955861 GGD

CATEGORY: Classification

TARIFF NO.: 4911.91.4040

Area Director of Customs

JFK Airport Area

Building 178

Jamaica, New York 11430

RE: Decision on Application for Further Review of Protest No.

1001-93-100783, filed February 10, 1993, concerning the

classification of \"Little Gems Stick-on Earrings.\" The

items are imported from Taiwan.

Dear Sir:

This is a decision on a protest timely filed, against your

decision in the classification and liquidation in November 1992,

of \"Little Gems Stick-on Earrings\" that were entered in April

1992\.

FACTS:

You classified the merchandise under subheading

4911.91.4040, Harmonized Tariff Schedule of the United States

Annotated (HTSUSA), the provision for \"Other printed matter,

including printed pictures and photographs: Other: Pictures,

designs and photographs: Printed not over 20 years at time of

importation: Other: Other, Other.\" The goods were dutiable at

3.1 percent ad valorem. Protestant claims that the merchandise

should be classified under subheading 9503.90.6000, HTSUSA, the

provision for other toys (except models), not having a spring

mechanism; and that the goods should be free of duty under

subheading 9902.71.13, HTSUSA (which provides in pertinent part

that, if subject to a general column one rate of duty, articles

\[except parts\] provided for in heading 9503, valued not over five

cents per unit, are duty free).

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Although no samples were submitted, photographs of various

packages of stick-on items, marketing information, copies of the

invoice and entry documents, and communications with Customs in

New York, indicate that the articles 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 contain pictures and/or designs. The stick-on

items of all types are imported in bulk.

ISSUE:

Whether the merchandise is properly classified in subheading

9503.90.6000, HTSUSA, as other toys not having a spring

mechanism; in subheading 3926.40.0000, HTSUSA, as other articles

of plastics, statuettes and other ornamental articles; or in

subheading 4911.91.4040, HTSUSA, as other printed matter,

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 stick-on earrings are not

designed for amusement, but for adornment, decoration, and

ornamentation. Thus, the items may not be classified as other

toys.

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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.

Although the stick-on articles are designed to decorate and

adorn, they also incorporate pictures and/or designs. 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 subject items are designed for

decoration, it follows that any printing that they incorporate is

consistent with their use as ornamental articles. Thus, the

motifs and 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. Since the \"Little Gems Stick-on Earrings\" contain

pictures and/or designs, they are classified in subheading

4911.91.4040, HTSUSA.

HOLDING:

The \"Little Gems Stick-on Earrings\" are classified in

subheading 4911.91.4040, HTSUSA, the provision for \"Other printed

matter, including printed pictures and photographs: Other:

Pictures, 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 in 1992 was 3.1

percent ad valorem.

The protest should be denied in full. A copy of this

decision should be attached to the Form 19 to be returned to the

protestant.

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

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protestant 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 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, Lexis, the Freedom

of Information Act and other public access channels.

Sincerely,

John Durant, Director

Commercial Rulings Division