CLA 2 RR:CR:GC 96193 MMC
Mr. Joel K. Simon
Serko & Simon
One World Trade Center
Suite 3371
New York, NY 10048
RE: Pins with a Valentine’s Day Motif
Dear Mr. Simon:
This is in reference to your June 9, 1998, ruling request on behalf of Russ Berrie, Inc., concerning the classification of pins with a Valentine’s Day Motif under the Harmonized Tariff Schedule of the United States (HTSUS). Samples have been forwarded for our review.
FACTS:
The articles under consideration are lapel pins with a Valentine’s Day motif. Item # 19020 consists of 2 different pins. One is heart-shaped and measures approximately 15/16 inches in diameter. The heart’s frame is silver and the interior is a red epoxy resin decorated with a gold rose. The other pin is a silver square metal box with the word LOVE inside the surface of the box. Hanging from the box is a small metal heart. Both the box and heart are filled with red epoxy.
Both pins are made of a lead/tin alloy metal exterior with interiors of epoxy resin made from epoxidized polarutadiene. The value of the constituent materials is as follows:
tin/lead alloy $6.50/2 doz. deals
Epoxy resin $1.95/2 doz. deals
Packing $2.90/2 doz. deals
Labor, Overhead etc. $3.40/2 doz. deals
Total $14.85/2 doz. deals
ISSUE:
Whether the pins are classifiable as imitation jewelry, under heading 7117, HTSUS or as "festive articles" under heading 9505, HTSUS.
LAW AND ANALYSIS:
Classification under the HTSUS, is made in accordance with the General Rules of Interpretation (GRIs). The systematic detail of the HTSUS 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 GRIs may then be applied. The HTSUS headings under consideration are as follows:
7117 [i]mitation jewelry
9505 [f]estive, carnival or other entertainment articles, including magic tricks and practical joke articles; parts and accessories thereof
Notes 9 and 11 to Chapter 71, HTSUS, state, in pertinent part, that the scope of the term "imitation jewelry" includes any small objects of personal adornment (gem set or not) such as rings, bracelets, necklaces, brooches, earrings, watch chains, fobs, pendants, etc., not incorporating pearls, precious metal or precious or semiprecious stones. The subject pins meet this definition. As such, they are clearly described by heading 7117, HTSUS, specifically subheading 7117.90, which provides for other imitation jewelry.
You claim that the pins are also described by heading 9505, HTSUS, and offer 4 different reasons for your claim: that the pins fall within the scope of the term “fancy dress” and therefore, within the class “other festive articles,” that, in general, articles used for personal adornment are not precluded from falling within the class “festive articles,” that these pins meet the use test outlined in United States v. Carborundum Company, 63 CCPA 98, C.A.D. 1172, 536 F. 2d 373 (1976), cert. denied, 429 U.S. 979 (hereinafter Carborundum) and that even if the articles are described by both headings under GRI 3(c) they are classifiable in heading 9505, HTSUS.
Ornament/Fancy Dress
In Midwest of Cannon Falls v. United States, 122 F.2d. 1423 (Fed. Cir. 1997) [hereinafter Midwest] the court held that the scope of heading 9505, HTSUS, included articles “used in celebration of and for entertainment on a joyous holiday, and that all of the articles were prima facie classifiable as “festive articles.” No piece of jewelry was considered in the case. Concerning the argument that the Christmas-related articles should be classified as “Christmas Ornaments” under subheading 9505.10, HTSUS, the court stated that the argument centered around the scope of the term “Christmas Ornament.” It then held that the scope of the term “Christmas Ornament” was not limited to Christmas tree ornaments, and that phrase should be construed to embrace evolving consumer tastes and not be limited to traditional Christmas themes.
A tariff term that is not defined in the HTSUS or in the EN's is construed in accordance with its common and commercial meaning. Nippon Kogasku (USA) Inc. v. United States, 69 CCPA 89, 673 F.2d 380 (1982). Common and commercial meaning may be determined by consulting dictionaries, lexicons, scientific authorities and other reliable sources. C.J. Tower & Sons v. United States, 69 CCPA 128, 673 F.2d 1268 (1982). Based on this and your interpretation of Midwest, you have provided the dictionary definition of “ornament” which is: “something that lends grace or beauty; a decorative pair or addition.” You now claim that any article which “lends grace or beauty”, has a festive motif and is not excluded from the heading by Section or Chapter Notes is classifiable in heading 9505, HTSUS. Such an interpretation is faulty however, as the term “ornament” is only used in a subheading pertaining specifically to Christmas articles and not other festive articles, e.g., Valentine’s Day, and, the definition fails to embody the principal use of articles classifiable in heading 9505, HTSUS, that is as household decorative articles; not those used to adorn the person. Accordingly, it is our opinion that the articles classified in Chapter 95 as “Christmas Ornaments” are those which are designed and principally used to adorn or ornament things for the Christmas holiday, not people.
The term “fancy dress” appears in the Explanatory Notes to Chapter 95. The Harmonized Commodity Description And Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System. While not legally binding on the contracting parties, and therefore not dispositive, the EN’s provide a commentary on the scope of each heading of the Harmonized System and are thus useful in ascertaining the classification of merchandise. Customs believes the EN’s should always be consulted. See T.D. 89 80, 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).
Among other items, heading 9505, HTSUS, provides for festive, carnival or other entertainment articles. The EN 95.05 states, in part, 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:
* * *
(3) Articles of fancy dress, e.g., masks, false ears and noses, wigs...and paper hats. However, the heading excludes fancy dress of textile materials, of Chapter 61 or 62.
You argue that the jewelry is of the same class or kind of articles as the false, ears and noses, wigs etc.. We disagree. The term “fancy dress” is defined as “a masquerade costume” Webster's II New World Dictionary, Third College Edition (1988), and the exemplars are consistent with that; articles used to dress up and hide one’s identity. Unlike articles of fancy dress, these pins have no disguise aspect. One does not wear them to take on a new persona or mask one’s identity. As such, the jewelry can not be considered an article of fancy dress for tariff purposes.
Personal adornment
In Headquarters Ruling Letter (HRL) 961833, dated May 19, 1999, we classified Gift Box Brooches. We indicated that the court, in Midwest, included within the scope of the class “festive articles” decorative household articles which are representations of an accepted symbol for a recognized holiday and utilitarian/functional articles if such utilitarian articles are a three dimensional representation of an accepted symbol for a recognized holiday. As the brooches were articles of personal adornment, and not either household decorative articles which were representations of an accepted symbol for a recognized holiday or utilitarian/functional articles which were a three dimensional representation of an accepted symbol for a recognized holiday, Customs held that they were not described by heading 9505, HTSUS.
Like the brooches of HRL 961833, the subject pins are articles of personal adornment. As such, heading 9505, HTSUS, does not describe them.
United States v. Carborundum Company
You claim the pins meet the principle use test outlined in Carborundum. In making a determination on the Midwest articles, the court applied the general criteria for classification set forth in Carborundum. Therefore, for those articles, holidays and symbols not specifically recognized in Midwest, Customs applies the general criteria for classification set forth in Carborundum. Those criteria include: general physical characteristics, the expectation of the ultimate purchaser, channels of trade, environment of sale (accompanying accessories, manner of advertisement and display), use in the same manner as merchandise which defines the class, economic practicality of so using the import, and recognition in the trade of this use.
You assert that the pins have potential Valentine’s Day motifs, that the ultimate purchaser will wear them during the appropriate holiday, that they are purchased during their respective holiday season, sold at the same time as ornamental articles for the particular season, are used to “celebrate the holiday” and would be “ridiculous” to wear any other time of the year, are all evidence that the jewelry meets the Carborundum test and therefore are described by 9505, HTSUS. While this evidence indicates that the pins are, to some extent, used in a festive manner, we do not believe it demonstrates their principle use, which is personal adornment.
Thus, we are of the opinion that the pins remain jewelry even if they have a motif associated with a holiday. The jewelry does not loose its identity as jewelry simply by virtue of what it depicts. The decoration of the jewelry with festive motifs does not prevent its use as jewelry. It remains an object used to adorn the person not the home. As such, it is not described by heading 9505.
GRI 3(c)
Finally, you argue that the pins are described by both headings, and as such under GRI 3(c) it is classifiable in heading 9505, HTSUS. For the sake of argument, if the pins were described by both headings, they would not be classifiable according to GRI 1.
GRI 3(a) states, in pertinent part, that:
When...goods are, prima facie, classifiable under two or more headings, classification shall be effected as follows:
(a) [t]he heading which provides the most specific description shall be preferred to headings providing a more general description...
The EN to GRI 3 states that:
(I) ...[t]hese methods operate in the order in which they are set out in the Rule. ... The order of priority is therefore (a) specific description; (b) essential character; (c) heading which occurs last in numerical order.
...(III) [t]he first method of classification is provided in Rule 3 (a), under which the heading which provides the most specific description of the goods is to be preferred to a heading which provides a more general description.
(IV) [i]t is not practicable to lay down hard and fast rules by which to determine whether one heading more specifically describes the goods than another, but in general it may be said that:
(a) [a] description by name is more specific than a description by class (e.g., shavers and hair clippers, with self contained electric motor, are classified in heading 85.10 and not in heading 85.08 as electro mechanical tools for working in the hand or in heading 85.09 as electro mechanical domestic appliances with self contained electric motor). [emphasis added]
(b) [i]f the goods answer to a description which more clearly identifies them, that description is more specific than one where identification is less complete. [emphasis added]
Applying this analysis to the subject pins, the term “imitation jewelry” more clearly identifies them than the term “festive article,” as the description “imitation jewelry” is by name while the description “festive article” is by class. As the term “imitation jewelry”, not “festive article”, more clearly identifies the subject pins, if GRI 3 were applicable in this case by operation of GRI 3(a) the pins would be classifiable as “imitation jewelry” in heading 7117, HTSUS, specifically subheading 7117.90, HTSUS. As classification could be determined by GRI 3(a), GRI 3(c) would not be considered.
HOLDING:
Whether by operation of GRI 1 or GRI 3(a), the pin is classifiable in subheading 7117.90, HTSUS, which provides for other imitation jewelry. Classification of the article at the 8 digit subheading level will depend upon the value of the articles per dozen pieces or parts.
Sincerely,
John Durant, Director
Commercial Rulings Division