CLA-2 RR:TC:TE 960401 CAB
David A. Eisen, Esq.
Siegel, Mandell & Davidson, P.C.
One Astor Plaza
1515 Broadway
43rd Floor
New York, NY 10036-8901
RE: Classification of a teddy bear pin; Heading 6217; Heading
9505; Heading 7117; Heading 9503; GRI 3(b)
Dear Mr. Eisen:
This is in response to your inquiry of March 7, 1997,
requesting a tariff classification ruling on behalf of your
client Avon Products, Inc., pursuant to the Harmonized Tariff
Schedule of the United States Annotated (HTSUSA). A sample was
submitted for examination.
FACTS:
The article at issue is described as a "Collectabear
Christmas Pin". The submitted sample is a miniature, stuffed,
textile pin depicting a teddy bear. The pin measures 4 inches in
height, is clothed in a red and white Santa Claus-type suit with
a hat and contains a metal bar-pin clasp on the back.
ISSUE:
What is the proper classification for the merchandise at
issue?
LAW AND ANALYSIS:
Classification of goods under the HTSUSA is governed by the
General Rules of Interpretation (GRI's). GRI 1 provides that
classification shall be determined according to the terms of the
headings and any relative section or chapter notes. Merchandise
that cannot be classified in accordance with GRI 1 is to be
classified in accordance with subsequent GRI's taken in order.
The subject merchandise is potentially classifiable under
several different headings. Specifically, you propose
classification under Heading 9505, HTSUSA, or Heading 9503,
HTSUSA, or Heading 7117, HTSUSA. Heading 9505, HTSUSA, provides
for, inter alia, festive, carnival or other entertainment
articles. Heading 7117, HTSUSA, provides for, inter alia,
imitation jewelry. Heading 9503, HTSUSA, provides for toys
representing animals or non-human creatures. Heading 6217,
HTSUSA, which must also be considered, provides for other made up
clothing accessories.
The Explanatory Notes to the Harmonized Commodity
Description and Coding System (EN) although not legally binding,
is the official interpretation of the tariff at the international
level. The EN to Heading 9505, HTSUSA, state the following:
This heading includes:
(A) Festive, carnival or other entertainment articles,
which in view of their intended use are generally made of
non-durable material. They include:
(1) Decorations such as festoons, garlands, Chinese
lanterns, etc., as well as various decorative articles made
of paper, metal foil, glass fibre, etc., for Christmas trees
(e.g., tinsel, stars, icicles), artificial snow, coloured
balls, bells, lanterns, etc. Cake and other decorations
(e.g., animals, flags) which are traditionally associated
with a particular festival are also classified here.
* * *
In prior rulings, Customs has stated that in general,
merchandise is classifiable in heading 9505, HTSUSA, as a festive
article when the article, as a whole:
1. is of non-durable material or, generally, is not
purchased because of its extreme worth, or intrinsic value
(e.g., paper, cardboard,
metal foil, glass fiber,
plastic, wood);
2. functions primarily as a decoration (e.g., its
primary function is not utilitarian); and
3. is traditionally associated or used with a
particular festival e.g., stockings and tree ornaments
for Christmas,
decorative eggs
for Easter).
In support of your assertion that the subject articles is
classifiable under Heading 9505, HTSUSA, you refer to Midwest of
Canon Falls Inc., v. United States, (Slip Op. 96-19). You state:
Specifically, in Midwest, after examining the relevant
statutory language, Explanatory Notes and common and
commercial meanings of the terms of heading 9505, HTSUS, the
Court adopted a much broader interpretation of the scope and
application of said festive articles than that advanced by
Customs and refrained from limiting festive articles to
items possessing themes "traditionally" associated with a
recognized festive occasion (such as Christmas). For
example, the Court ordered that certain Christmas wooden
pull toys, cast iron Christmas stocking hangars, Christmas-related water globes, porcelain Santas with light-up trees,
etc. be reclassified as Christmas "ornaments" under heading
9505, HTSUS. Certain Easter water globes were also held to
be classifiable as other festive articles under heading
9505, HTSUS.
You further contend that the subject pin will be "marketed
and sold during the two or three months preceding the Christmas
holiday motif, is clearly constructed and designed in a Christmas
holiday motif, and is specifically dedicated for decorative
purposes during Christmas..." Customs agrees with your assertion
that the Court in Midway took a broader view of the scope of
festive articles classifiable under Heading 9505, HTSUSA, then
had been interpreted by Customs. However, Customs does not agree
that the subject article is classifiable under Heading 9505,
HTSUSA. In Midway, the Court stated "that the items at issue are
principally used to decorate the house or three during the
Christmas holiday season. The nutcrackers, for instance,
frequently are given as Christmas gifts and then utilized by the
recipient to decorate his or her home during Christmas." In this
instance, the teddy bear pin is used as a personal embellishment
as opposed to adornment or "decoration" for the home which
Customs believes is required for classification as a festive
articles in accordance with the applicable (EN) and the cited
court case.
You also maintain, that if the subject teddy pin is not
properly classifiable under Heading 9505, HTSUSA, alternatively,
it is classifiable under Heading 9503, HTSUSA. Customs stated in
HQ 087960, dated January 4, 1991, when classifying a Christmas
corsage pin that "among pins and buttons only comic buttons with
humorous words or sayings are properly classified as other
toys'." Although the subject pin may provide amusement, it is
not of a comical nature nor does it feature humorous words or
sayings -- it is simply a novelty pin which does not meet the
requirements for classification in Heading 9503, HTSUSA. In this
case, as in HQ 087960, the subject pin, as a result of the
decorative Santa Claus clothing, is primarily designed as a
clothing decoration and not for entertainment or amusement
purposes. Consequently, the subject teddy bear pin is not
classifiable under Heading 9503, HTSUSA.
Chapter 71, HTSUSA, provides for, inter alia, imitation
jewelry. Legal Note 3(g) to Chapter 71, HTSUSA, states that this
chapter does not cover goods of Section XI (textile and textile
articles). You contend that if Customs does not agree that the
instant article is classifiable in one of the aforementioned
headings, it is properly classifiable under Heading 7117, HTSUSA,
as imitation jewelry as it meets the definition of a brooch and
is clearly identifiable as such. You specifically state:
In particular, the article features a bar-pin clasp
which is of the type ordinarily affixed to jewelry pins
or brooches, and is intended to be worn pinned to
clothing for holiday display as an article of
adornment. Additionally, it is submitted that the
brooch, as an article of mixed construction, is not
prima facie excluded from classification in Chapter 71
by reference to Chapter Note 3(g). Accordingly, by
application of GRI 2 and GRI 3, the article is
classifiable based upon its essential character, under
the tariff provision for imitation jewelry within
subheading 7117.90.90, HTSUS, as claimed, and is not
excluded from Chapter 71, HTSUS.
You refer to Treasury Decision 96-24 for the proposition
that the subject article cannot, prima facie be considered a
textile product of Section XI. You state, that "[a]lthough this
T. D. concerned the tariff classification of textile headbands
constructed with rigid bar-clasps, it provides useful guidance in
analyzing the tariff classification of other articles of mixed
construction."
Customs agrees with your statement that the subject pin
cannot be prima facie considered a textile product of Section XI.
In fact, in Headquarters Ruling Letter (HQ) 080498, dated
December 28, 1989, classifying a bar pin comprised of an oval
rhinestone ornament, textile fabric, and a clasp, Customs
determined that proper analysis required that the pin be
classified pursuant to GRI 3(b) as it was comprised of different
materials. Customs classified the pin under Heading 6217,
HTSUSA, and noted the following therein:
It is our opinion that the textile bow imparts the
essential character to the bar pin. If we remove the
rhinestone ornament from the pin we still have a
decorative bar pin. It is our observation that the
textile component here plays a more significant role
than the rhinestone ornament because the visual
impression is primarily that of a bow.
You assert that the classification of the subject teddy bear
pin under Heading 6117, HTSUSA, would be erroneous. You state
the following:
Classification of the merchandise within heading 6117,
HTSUS, is contrary to the relevant Explanatory Notes
and exemplars listed therein. Specifically, imitation
jewelry articles are not ejusdem generis to the
exemplars. Although articles such as labels, badges,
emblems and the like are enumerated as exemplars, these
items are further defined within the Explanatory Notes
(heading 5807) to consist of articles of a kind
normally sewn to the outer part of wearing apparel.
Thus, these articles are permanently attached or sewn
to wearing apparel, unlike articles of jewelry.
After examining the numerous exemplars listed in the EN to
Heading 6217, HTSUSA, Customs believes that your view of the
applicable EN is too narrowly construed. Based on Customs
reading of the applicable EN to Heading 6217, HTSUSA, there is
nothing contained therein which would preclude the subject teddy
bear pin from classification under Heading 6217, HTSUSA. You
contend that certain exemplars mentioned in the applicable EN are
comprised of articles of a kind normally sewn to the exterior of
wearing apparel and therefore, the subject article is not ejusdem
generis to the exemplars since it is not designed to be
permanently affixed to garments. However, the EN lists
accessories which may be used as a detachable articles or which
are not attached to garments (i.e., belts and sashes, muffs,
lanyards, epaulets, and badges). Nowhere in the EN is it
mentioned that articles properly classifiable under Heading 6217,
HTSUSA, have to be permanently attached or sewn to wearing
apparel as a prerequisite to tariff classification under that
heading. Specifically, in HQ 080498, when presented with the
identical argument by the importer therein, Customs stated the
following:
You assert that the fallals listed in the Explanatory
Note to heading 6217 are intended to be permanently
sewn to clothing, and consequently your bar pin is not
of this kind because it is pinned on. We do not agree.
Rosettes with pins are displayed next to this bow in
any number of retail stores. All manner of fallals may
be purchased as detachable accessories in stores
depending on the whims of fashion.
Accordingly, pursuant to GRI 3(b), the essential character
of the subject teddy bear pin is imparted by the textile
component of the article. If we remove the textile portion of
the subject article, only a basic pin bar clasp remains. The
textile component of the subject article, on the other hand,
predominates in terms of adornment, weight, and value.
Consequently, the subject teddy bear pin in classifiable under
Heading 6217, HTSUSA. This conclusion is consistent with HQ
958167, dated August 30, 1995, where Customs classified a textile
shamrock pin under Heading 6217, HTSUSA, and HQ 958406, dated
January 23, 1996, where Customs revoked HQ 083788, dated March
30, 1989, which had initially classified a textile shamrock pin
under Heading 9505, HTSUSA, and correctly classified the pin
under Heading 6217, HTSUSA.
HOLDING:
Based on the foregoing, the subject teddy bear pin is
classified in subheading 6217.10.9030, HTSUSA, which provides for
other made up clothing accessories; parts of garments or of
clothing accessories, other than those of heading 6212,
accessories, other, of man-made fibers. The General Column rate
of duty is 15.2 percent ad valorem and the textile restraint
category is 659.
The designated textile and apparel category may be
subdivided into parts. If so, visa and quota requirements
applicable to the subject merchandise may be affected. Since
part categories are the result of international bilateral
agreements which are subject to frequent renegotiations and
changes, to obtain the most current information available, we
suggest that you check, close to the time of shipment, the Status
Report on Current Import Quotas (Restraint Levels), an internal
issuance of the U.S. Customs Service, which is available for
inspection at your local Customs office.
Due to the changeable nature of the statistical annotation
(the ninth and tenth digits of the classification) and the
restraint (quota/visa) categories applicable to textile
merchandise, you should contact your local Customs office prior
to importing the merchandise to determine the current status of
any import restraints or requirements.
Sincerely,
John Durant, Director
Tariff Classification Appeals
Division