Revocation of NY N241384; Tariff classification of Floppets

HQ H249749 June 14, 2018 OT:RR:CTF:CPMM H249749 RGR CATEGORY: Classification TARIFF NO.: 7117.90.7500 Ms. Sara M. Moffatt Phoenix International Freight Services, Ltd. 1501 N. Mittel Blvd., Suite A Wood Dale, IL 60191 RE: Revocation of NY N241384; Tariff classification of Floppets Dear Ms. Moffat: This is in response to your letter, dated August 13, 2013, on behalf of Zydeco Studios LLC, requesting the reconsideration of New York Ruling Letter (“NY”) N241384, dated May 29, 2013. In that decision, U.S. Customs and Border Protection (“CBP”) ruled that character charms marketed as “Floppets” were classified in subheading 3926.40.00, Harmonized Tariff Schedule of the United States (“HTSUS”), as “[o]ther articles of plastics and articles of other materials of headings 3901 to 3914: Statuettes and other ornamental articles.” A sample of the subject merchandise was included with the request. We have reviewed NY N241834 and determined that the classification of the Floppets in subheading 3926.40.00, HTSUS, was incorrect. Pursuant to 19 U.S.C. § 1625(c)(1), a notice was published in the Customs Bulletin, Volume 52, No. 19 on May 9, 2018, proposing to revoke NY N245711, and any treatment accorded to substantially similar transactions. No comments were received in response to this notice. FACTS: The subject merchandise consists of cartoon-like plastic characters attached to a textile strap with hook and loop closures that, when closed, are about the size of a ring. Because the closure is flexible, it may also attach to a wide variety of items such as sunglasses, shoes, backpacks and pencils. In NY N241384, we described the product as follows: The Floppets are polyvinyl chloride (PVC) character charms on a hook and loop strip. These charms are available in such forms as hamsters, octopuses and penguins. The Floppets can be used to decorate a wide variety of items such as sunglasses, shoes, backpacks and pencils. According to the Floppets UK website, you can “[w]ear them on your finger, back pack, flip flops, shoe laces, wrists, ankles or add them to your most personal accessories. Floppets allow you to demonstrate how clever you are by ‘wear’ you attach them! You can collect, share, wear, and trade them with everyone!” The webpage entitled “How Do Floppets Work?” explains that the loop side of the strap, which it refers to as a “teather” is “comfortable against the skin , . . . ideal when wearing a Floppet around your finger, as part of a necklace or bracelet, or even on your sandle and attached to clothes!” The hook side of the teather allows it to stay connected. The “eyelet” is a small slit in the strap through which a plastic mushroom shaped protusion on the back of the plastic character is positioned. This allows the wearer to switch plastic characters from one textile strap to another. ISSUE: Whether plastic cartoon-like character charms known as Floppets are classified under heading 3926, HTSUS, as “other articles of plastics,” under heading 7117, HTSUS, as “imitation jewelry” or under heading 9503, HTSUS, as “other toys.” LAW AND ANALYSIS: The classification of merchandise under the HTSUS is governed by the General Rules of Interpretation (“GRIs”) and Additional U.S. Rules of Interpretation. GRI 1 provides, in part, that “for legal purposes, classification shall be determined according to terms of the headings 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 HTSUS headings under consideration are as follows: 3926 Other articles of plastics and articles of other materials of headings 3901 to 3914: 7117 Imitation jewelry: 9503 Tricycles, scooters, pedal cars and similar wheeled toys; dolls’ carriages; dolls, other toys; reduced-scale (“scale”) models and similar recreational models, working or not; puzzles of all kinds; parts and accessories thereof: *** Note 9(a) to Chapter 71, HTSUS, states, in pertinent part: For the purposes of heading 7113, the expression “articles of jewelry” means: Any small objects of personal adornment (for example, rings, bracelets, necklaces, brooches, earrings, watch chains, fobs, pendants, tie pins, cuff links, dress studs, religious or other medals and insignia). Note 11 to Chapter 71, HTSUS, states: For the purposes 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. Note 2 to Chapter 39, HTSUS, provides, in pertinent part: 2. This chapter does not cover: *** (y) Articles of Chapter 95 (for example, toys, games, sports equipment)… *** The Harmonized Commodity Description and Coding System Explanatory Notes (EN) constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the EN provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of the headings. It is CBP’s practice to consult, whenever possible, the terms of the ENs when interpreting the HTSUS. See T.D. 89–80, 54 Fed. Reg. 35127, 35128 (August 23, 1989). The EN 39.26 states, in pertinent part, the following: This heading covers articles, not elsewhere specified or included, of plastics (as defined in Note 1 to the Chapter) or of other materials of headings 39.01 to 39.14.   They include:   (1)   Articles of apparel and clothing accessories (other than toys) made by sewing or sealing sheets of plastics, e.g., aprons, belts, babies’ bibs, raincoats, dress-shields, etc. Detachable plastic hoods remain classified in this heading if presented with the plastic raincoats to which they belong. ***    (12) Various other articles such as fasteners for handbags, corners for suit-cases, suspension hooks, protective cups and glides for placing under furniture, handles (of tools, knives, forks, etc.), beads, watch “glasses”, figures and letters, luggage labelholders.   The EN to Heading 71.13 states, in pertinent part: This heading covers articles of jewellery as defined in Note 9 to this Chapter, wholly or partly or precious metal or metal clad with precious metal, that is: Small object of personal adornment (gem-set or not) such as rings, bracelets, necklaces, brooches, ear-rings, neck chains, watch-chains and other ornamental chains; fobs, pendants, tie-pins and clips, cuff-links, dress-studs, buttons, etc.; religious or other cross; medals and insignia; hat ornaments (pins, buckles, rings, etc.); ornaments for handbags; buckles and slides for belts, shoes, etc.; hair-slides, tiaras, dress combs and similar hair ornaments. (emphasis added). The EN to Heading 71.17 states, in pertinent part: For the purposes of this heading, the expression imitation jewellery, as defined in Note 11 to this Chapter, is restricted to small objects of personal adornment, such as those listed in paragraph (A) of the Explanatory Note to heading 71.13, e.g., rings, bracelets (other than wrist-watch bracelets), necklaces, ear-rings, cuff-links, etc., … The EN to heading 95.03 states, in pertinent part, the following: *** (D)  Other toys.           This group covers toys intended essentially for the amusement of persons (children or adults). However, toys which, on account of their design, shape or constituent material, are identifiable as intended exclusively for animals, e.g., pets, do not fall in this heading, but are classified in their own appropriate heading. This group includes:           All toys not included in (A) to (C). Many of the toys are mechanically or electrically operated.           These include:   (i) Toys representing animals or nonhuman creatures even if possessing predominantly human physical characteristics (e.g., angels, robots, devils, monsters), including those for use in marionette shows. The importer asserts that Floppets are classified either in heading 7117, HTSUS, as “imitation jewelry” or in heading 9503, HTSUS, as “other toys” instead of heading 3926, HTSUS, as “other articles of plastic.” Toys of Chapter 95 are excluded from classification in heading 3926, HTSUS, pursuant to Note 2 to Chapter 39. Hence, we must first determine if the subject merchandise constitutes “imitation jewelry” within the scope of heading 7117, HTSUS, or “other toys” within the scope of heading 9503, HTSUS, before considering classification in heading 3926, HTSUS. The importer also asserts that Floppets are similar to Jibbitz, which were classified in NY N212139, dated May 1, 2012, under heading 7117, HTSUS. Jibbitz are plastic charms that come in various cartoon-like designs and are used to decorate Crocs shoes. Jibbitz are specifically designed to decorate Crocs shoes through insertion into the shoes’ holes rather than by a strap. We have recently proposed revocation of an inconsistent ruling on Jibbitz in favor of classification in heading 7117, HTSUS. See H278152, revoking NY N009740, published in Customs Bulletin Vol. 51, No 48, dated November 29, 2017. We do not believe that occasional use on items not mentioned in the legal text or ENs precludes classification as imitation jewelry. In fact, Floppets are used to adorn more than shoes—they can be worn like rings, pendants from a necklace or charms from a bracelet. They can attach through buttonholes near a shirt collar like a brooch, on belts like a buckle, or on handbags. Hence Floppets, which do not contain any metal, pearls or precious or semiprecious stones, are ejusdem generis with the exemplars of Note 9(a), and can be described as imitation jewelry under Note 11 to Chapter 71. We must also determine whether the article is a toy of heading 9503, and thus excluded from classification in heading 3926. In order to do so, it is necessary to compare whether the primary purpose is to amuse or to provide a utilitarian/functional quality. See HQ 966046, dated May 16, 2003 and HQ 963638, dated November 2, 2001. In Ideal Toy Corp. v. United States, 78 Cust. Ct. 28, 33; C.D. 4688 (1977), the court stated that "[W]hen amusement and utility become locked in controversy, the question becomes one of determining whether the amusement is incidental to the utilitarian purpose, or the utility purpose is incidental to the amusement." Therefore, if the level of play value and amusement of the article is not sufficient to constitute its principal use, the article is not a toy. See United States v. Topps Chewing Gum, Inc., 58 C.C.P.A. 157 (1973); HQ 229863, dated February 10, 2004. Indeed, the instant merchandise is used to adorn the wearer or the wearer’s personal effects. In so doing, it is not being played with by, or amusing to, the wearer. While Floppets may be traded, this alone does not provide amusement or diversion per se. See NY I81353, dated May 10, 2002 and NY J86462, dated July 2, 2003. Furthermore, the provisions for toys representing animals and non-human creatures require that a toy figure must be a full or reasonably full-figured depiction of the animal/creature it seeks to represent and that figure must be a soft, sculptured edition or an articulation in three dimensions of the head, torso, and appendages of the character being portrayed. See HQ 963390, dated November 24, 2000. The instant figure is small and flat and may only depict the face of the creature. In short, nothing about the instant merchandise leads us to the conclusion that it can be described as a toy of heading 9503. Floppets are made of a textile strap and a plastic figure. Hence, heading 3926, HTSUS, describes only part only of the good, even though it may be similar in its placement to some of the listed items in EN 39.26 (1) and (12). Therefore, Floppets could only be classified there under GRI 3, whereas the terms to heading 7117 describe the good at GRI 1. Furthermore, even if the merchandise were wholly described by heading 3926, HTSUS, as it is classifiable in heading 7117, HTSUS, it cannot be classified in heading 3926, HTSUS, according to the EN thereto. In light of the foregoing, Floppets are properly classified in heading 7117, HTSUS, and specifically provided for under subheading 7117.90.75, HTSUS, as “Imitation jewelry: Other: Other: Valued over 20 cents per dozen pieces or parts: Other: Of plastics.” HOLDING: By operation of GRIs 1 and GRI 6, Floppets are classifiable as “imitation jewelry” in heading 7117, HTSUS, and are specifically provided for in subheading 7117.90.7500, HTSUSA (Annotated), which provides for “Imitation jewelry: Other: Other: Valued over 20 cents per dozen pieces or parts: Other: Of plastics.” The 2018 column one, general rate of duty is free. EFFECT ON OTHER RULINGS: NY N241384, dated May 29, 2013, is revoked. In accordance with 19 U.S.C. § 1625(c), this ruling will become effective 60 days after its publication in the Customs Bulletin. Sincerely, Myles B. Harmon, Director Commercial and Trade Facilitation Division