HQ 954158

September 16, 1993

CLA-2 CO:R:C:F 954158 GGD

CATEGORY: Classification

TARIFF NO.: 3926.40.0000; 4911.91.4040; 4911.99.8000

Area Director of Customs

JFK Airport Area

Building 178

Jamaica, New York 11430

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

1001-93-100475, filed January 26, 1993, concerning the

classification of \"stick-on earrings.\" The items are imported

from Taiwan.

Dear Sir:

This is a decision on a protest filed January 26, 1993,

against your decision in the classification and liquidation in

November 1992, of \"stick-on earrings\" that were entered in March

1992\.

FACTS:

You classified the merchandise under subheading 3926.90.9090

(which is now 3926.90.9590), Harmonized Tariff Schedule of the

United States Annotated (HTSUSA), the provision for \"Other

articles of plastics and articles of other materials of headings

3901 to 3914: Other: Other, Other.\" The goods were dutiable at

5.3 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 may contain pictures, designs, characters, symbols,

letters, etc. 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 3926.90.9590, HTSUSA, as other articles

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

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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.

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

adorn, the \"stick-on earrings\" 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 stick-on 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,

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symbols, and letters). Therefore, the \"stick-on earrings\" 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 \"stick-on earrings\" 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 in 1992 was 5.3 percent ad valorem.

The \"stick-on earrings\" 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, 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 \"stick-on earrings\" 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 in 1992 was 4.9 percent

ad valorem.

You are instructed to deny the protest, except to the extent

reclassification of the merchandise as indicated above results in

a net duty reduction and partial allowance. A copy of this

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

protestant.

Sincerely,

John Durant, Director

Commercial Rulings Division