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HQ 960401




July 16, 1997

CLA-2 RR:TC:TE 960401 CAB

CATEGORY: CLASSIFICATION

TARIFF NO.: 6217.10.9030

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

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