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HQ 951137


February 17, 1993

CLA-2 CO:R:C:F 951137 LPF

CATEGORY: CLASSIFICATION

TARIFF NO.: 7117.90.50

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.

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).

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.

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

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