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HQ 964382




August 7, 2001

CLA-2 RR:CR:TE 964382 mbg

CATEGORY: CLASSIFICATION

TARIFF NO.: 4202.92.9015

Barbara Y. Wierbicki, Esq.
Tompkins & Davidson, LLP
One Astor Plaza
1515 Broadway
New York, NY 10036-8901

RE: Reconsideration of NY F85757; classification of snowman jewelry box

Dear Ms. Wierbicki:

This is in response to your letter dated July 26, 2000, on behalf of your client, Avon Products, Inc., in which you seek to have Customs reconsider New York Ruling Letter (“NY”) F85757, dated April 20, 2000, regarding the classification under the Harmonized Tariff Schedule of the United States Annotated (“HTSUSA”) of a jewelry box shaped like a snowman. NY F85757 is affirmed for the reasons set forth below.

FACTS:

The subject merchandise is a novelty figure shaped and formed to resemble a snowman which functions as a presentation box for jewelry. The snowman figure features two white “snowballs” forming the body and the head. The head is decorated with eyes, nose, scarf and black hat. The interior of the figure has a textile lining and features a removable foamed plastic pad which has been slit for insertion of a ring. The snowman figure measures approximately 1 ¾ inches wide by 3 inches high. The box is manufactured of a molded plastic base that is wholly covered with textile materials of man-made fiber flocking. The interior is fitted to contain one ring. The box is hinged at the midsection so that the top half of the snowman torso forms the lid and the bottom half contains the ring. The jewelry box is suitable for long term use and is of the type normally presented with jewelry. You have stated that the box will be imported empty and packaged with a ring after importation, for merchandising and distribution for Avon’s Christmas merchandise. ISSUE:

What is the proper classification for the subject merchandise under the HTSUSA?

LAW AND ANALYSIS:

Classification of goods under the HTSUSA is governed by the General Rules of Interpretation (“GRIs”). GRI 1 provides that classification shall be determined 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 GRI may then be applied. The Explanatory Notes (“EN”) 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.

Jewelry boxes are eo nomine provided for under the Harmonized Tariff in Heading 4202. Heading 4202, HTSUSA specifically provides for “Trunks, suitcases, vanity cases, attaché cases, briefcases, school satchels, spectacle cases, binocular cases, camera cases, musical instrument cases, gun cases, holsters and similar containers; travelling bags, toiletry bags, knapsacks and backpacks, handbags, shopping bags, wallets, purses, map cases, cigarette cases, tobacco pouches, tool bags, sports bags, bottle cases, jewelry boxes, powder cases, cutlery cases and similar containers, of leather or of composition leather, of sheeting of plastics, of textile materials, of vulcanized fiber, or of paperboard, or wholly or mainly covered with such materials or with paper.”

(Emphasis added).

Thus, this heading encompasses the articles enumerated, as well as containers similar to these articles.

The Explanatory Notes (EN) to the Harmonized Commodity Description and Coding System constitute the official interpretation of the nomenclature at the international level. While not legally binding, they do represent the considered views of classification experts of the Harmonized System Committee. It has therefore been the practice of the Customs Service to follow, whenever possible, the terms of the EN when interpreting the HTSUSA.

In April, 1988, the United States formally raised the issue of the scope of the term "jewellery boxes" with the Harmonized System Committee (“HSC”). Ultimately, the HSC amended the EN to heading 4202 so as to clarify the meaning of this term. This amendment became effective on January 1, 1990, and reads as follows:

The term "jewellery boxes" covers not only boxes specially designed for keeping jewellery [the ordinary kind], but also similar lidded containers of various dimensions (with or without hinges or fasteners) specially shaped or fitted to contain one or more pieces of jewellery and normally lined with textile material, of the type in which articles of jewellery are presented and sold and which are suitable for long term use.

This language makes it clear that containers used in the presentation and sale of jewelry that are suitable for long-term use are included in the term "jewellery boxes." Based on our examination of the instant articles, we conclude that the snowman is used for the presentation and sale of jewelry and in addition, is suitable for long term use. Accordingly, the submitted samples are classifiable under heading 4202.

Furthermore, at the subheading level, the Harmonized Tariff includes a specific break out within heading 4202 for jewelry boxes which are normally sold at retail with their merchandise such as the subject merchandise. In NY F85757 dated April 20, 2000, Customs classified the subject merchandise in subheading 4202.92.9015, HTSUSA, and upon review that ruling is affirmed.

This decision is consistent with other Customs rulings on similar merchandise such as HQ 951028, dated March 3, 1993, in which Customs held that various boxes used in the retail sale of jewelry and similar items were jewelry boxes of the kind described in the above EN. The boxes classified therein were specially shaped or fitted to contain jewelry (containing inserts, slots, hooks, moldings, and the like) and were in fact used in the presentation and/or sale of such items. See also HQ 954021, dated November 1, 1993, and HQ 953610, dated April 30, 1993.

You have suggested the subject merchandise is properly classified as either a toy in heading 9502. HTSUSA; as a festive article in heading 9505, HTSUSA; or as an article for the conveyance of goods in heading 3923, HTSUSA. Customs is unpersuaded by any of these alternative classifications which you have proposed for the subject merchandise.

In Midwest of Cannon Falls, Inc. v. United States, Slip Op. 96-19 (Ct. Int’l Trade, 1996), aff’d in part, rev’d in part, 122 F.3d 1423, Appeal Nos. 96-1271, 96-1279 (Fed. Cir. 1997), the Court addressed the scope of heading 9505, HTSUS, specifically the class or kind of merchandise termed “festive articles,” and provided new guidelines for classification of such goods in the heading. In general, merchandise is classifiable as a festive article in heading 9505, HTSUS, when the article, as a whole:

1. Is not predominately of precious or semiprecious stones, precious metal or metal clad with precious metal;

2. Functions primarily as a decoration or functional item used in celebration of, and for entertainment on, a holiday; and

3. Is associated with or used on a particular holiday.

Based upon a review of the articles subject to the Midwest decision, Customs is of the opinion that the Court has 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. See 32 Cust. B. & Dec. Nos. 2/3, dated January 21, 1998. The subject snowman would not be associated with any particular holiday nor used on any particular holiday, but rather with the winter season and therefore classification as a festive article is precluded as such.

Customs notes the recent decision rendered by the Court of International Trade regarding the classification of festive articles under the HTSUSA in Park B. Smith v. United States, 2001 Ct. Intl. Trade lexis 71; Slip Op. 2001-63 (May 29, 2001). However, this decision is on appeal and until such time as the U.S. Court of Appeals of the Federal Circuit, or a higher court, renders a final opinion, Customs will not apply such principles on festive articles to merchandise such as presented in this case.

Goods made of plastics are covered in Chapter 39 of the HTSUSA, and specifically heading 3923, HTSUSA, provides for articles for the conveyance or packing of goods, of plastics. The ENs for heading 3923, HTSUSA, state that the heading covers all articles of plastic commonly used for the packing or conveyance of goods but specifically excludes containers of heading 4202. As was previously stated, jewelry boxes are eo nomine provided for within heading 4202, HTSUSA, and therefore discussion of the subject merchandise as an article for the conveyance of goods is inappropriate.

Heading 9503, HTSUSA, provides for other toys. Although the term "toy", in general, is not specifically defined in the tariff, the EN to chapter 95, HTSUSA, indicate that the chapter covers toys of all kinds whether designed for the amusement of children or adults. It has been Customs position that the "amusement" requirement means that toys should be designed and used principally for amusement. A jewelry presentation box such as this, even when in the shape of a snowman, does not provide such amusement and therefore discussion of the subject merchandise as a toy is inappropriate.

HOLDING:

NY F85757, dated April 20, 2000, is hereby affirmed.

The subject snowman jewelry box is eo nomine classified in subheading 4202.92.9015, HTSUSA as “Trunks, suitcases, vanity cases, attaché cases, briefcases, school satchels, spectacle cases, binocular cases, camera cases, musical instrument cases, gun cases, holsters and similar containers; travelling bags, toiletry bags, knapsacks and backpacks, handbags, shopping bags, wallets, purses, map cases, cigarette cases, tobacco pouches, tool bags, sports bags, bottle cases, jewelry boxes, powder cases, cutlery cases and similar containers, of leather or of composition leather, of sheeting of plastics, of textile materials, of vulcanized fiber, or of paperboard, or wholly or mainly covered with such materials or with paper: Other: With outer surface of sheeting of plastic or of textile materials: Other: Other: Other, jewelry boxes of a kind normally sold at retail with their contents.” The merchandise is dutiable at the general column one duty rate of 18.3 percent ad valorem.

Due to the changeable nature of the statistical annotation (the ninth and tenth digits of the classification), you should contact your local Customs office prior to importation of this merchandise to determine the current status of any import restraints or requirements.

Sincerely,

John Durant, Director

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