CLA-2 CO:R:C:F 951137 LPF
Mr. Joel K. Simon
Serko & Simon
One World Trade Center
Suite 3371
New York, NY 10048
RE: Modification of NYRL 833329; Pop-up pins in 7117, HTSUSA;
Imitation jewelry; Not 9505 festive articles; HRL 951140,
086630, 087109
Dear Mr. Simon:
In New York Ruling Letter (NYRL) 833329 pop-up pins, from
China, were classified in subheading 9505.90.6000, Harmonized
Tariff Schedule of the United States Annotated (HTSUSA), as
"Festive, carnival or other entertainment articles,...: Other:
Other." We have reviewed that ruling and have found it to be
partially in error. The correct classification is as follows.
FACTS:
The articles at issue, item number 1922, are pull string pin
pop-ups. One article includes a wooden flat-backed heart which
is split across its upper third. The pull string at the bottom
causes the top of the heart to move upwards revealing the image
of a teddy bear with the words, "I Love You." A bar pin is
attached to the back. The other article depicts a typewriter
with hearts instead of letter keys. A mouse is on one side of
the typewriter. When the string is pulled, the words, "You're
Special," pop up. A bar pin is attached to the back.
ISSUE:
Whether the pop-up pins are classifiable in heading 9505 as
festive articles, or are classifiable in heading 7117 as
imitation jewelry.
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LAW AND ANALYSIS:
The General Rules of Interpretation (GRI's) taken in their
appropriate order provide a framework for classification of
merchandise under the HTSUSA. Most imported 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. The Explanatory Notes (EN's) 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 GRI's.
Heading 9505 provides for, inter alia, festive, carnival and
other entertainment articles. The EN's to 9505 indicate that the
heading covers:
(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 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).
-3-
An article's satisfaction of these three criteria is
indicative of classification as a festive article. The motif of
an article is not dispositive of its classification and,
consequently, does not transform an item into a festive article.
Although Customs may consider the pop-up pins to be made of
non-durable material because they are not designed for sustained
wear and tear, nor are they purchased because of their extreme
worth or value (as would be the case with a decorative, yet
costly, piece of art or crystal), the articles primarily function
as personal adornment rather than as a decoration.
Moreover, when examining the pop-up pins, as a whole, it is
evident that they are not traditionally associated or used with a
particular festival. The pop-up pins are not ejusdem generis
with those articles cited in the EN's to 9505, as exemplars of
traditional, festive articles. On the contrary, articles
incorporating hearts may serve to express love or affection not
only on Valentine's Day, but also on other occasions, such as,
anniversaries, birthdays, etc. The articles must be classified
elsewhere. See Headquarters Ruling Letter (HRL) 951140, issued
December 16, 1992, where a stuffed textile heart and a die with
hearts were classified as other than festive articles.
Heading 7117, HTSUSA, provides for imitation jewelry. Note
10 to Chapter 71, HTSUSA, states that, "[f]or the purposes of
heading 7117, the expression 'imitation jewelry' means articles
of jewelry within the meaning of paragraph (a) of note 8
above...." Note 8(a) defines "articles of jewelry" as: "Any
small objects of personal adornment (gem-set or not) (for
example, rings...brooches...)...." A brooch is defined in the
Jeweler's Dictionary, 3rd edition, 1976, published by Jewelers'
Circular Keystone, as: "A piece of jewelry to be worn pinned to
clothing, as at the neck or shoulder, on the breast or hat, or in
the hair."
As the pop-up pins feature bar-pin clasps (of the type
routinely used on jewelry pins or brooches) and are worn as
articles of adornment, as referred to in the notes above, they
are identifiable as brooches. The pop-up pins are classifiable
in 7117. The appropriate subheading is 7117.90.50. See HRL
086630, issued July 3, 1990, and HRL 087109, issued August 16,
1990, where Frankenstein and Santa Claus lite-up pins and a
dancing skeleton pin, with a pull string, were classified in 7117
as imitation jewelry.
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HOLDING:
The pop-up pins are classifiable in subheading 7117.90.50,
HTSUSA, as "Imitation jewelry: Other: Other: Valued over 20 cents
per dozen pieces or parts." The general column one rate of duty
is 11 percent ad valorem. We note that the ruling being modified
indicated a general column one rate of duty of 3.1 percent ad
valorem.
This notice should be considered a modification of NYRL
833329 pursuant to 19 CFR 177.9(d)(1). It is not to be applied
retroactively to NYRL 833329 (19 CFR 177.9(d)(2)) and will not,
therefore, affect past transactions for the importation of your
client's merchandise under that ruling. However, for the
purposes of future transactions in merchandise of this type, NYRL
833329 will not be valid precedent. We recognize that pending
transactions may be adversely affected by this modification, in
that current contracts for importations arriving at a port
subsequent to this decision will be classified pursuant to it.
If such a situation arises, your client may, at its discretion,
notify this office and apply for relief from the binding effects
of this decision as may be warranted by the circumstances.
Sincerely,
John Durant, Director
Commercial Rulings Division