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HQ 966777




September 1, 2004

CLA-2 RR:CR:GC 966777 KBR

CATEGORY: CLASSIFICATION

TARIFF NO.: 7117.90.7500

Port Director
Bureau of Customs & Border Protection
2nd & Chestnut Streets
Philadelphia , PA 19106

RE: Protest 1101-03-10026; Glow Witch Necklace

Dear Port Director:

This is our decision on protest 1101-03-10026 filed by Samuel Shapiro & Company, Inc., on behalf of their client, Unique Industries, Inc., against your action regarding the classification of glow witch necklaces under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). The goods were entered June 18, 2002. The entries under protest were liquidated May 2, 2003. This protest was timely filed on July 29, 2003.

FACTS:

The product at issue is a glow-in-the-dark witch necklace (item no. 8778). The necklace is made of a string with a plastic catch on each end that click together, but will unfasten with minimal force to prevent choking. Attached to the string is a roughly shaped triangular hollow plastic pendant which is molded into what is described as a witch’s face. The witch’s face opens so that two “glow sticks” can be placed inside. The glow sticks are replaceable. A sample of the glow witch necklace was provided.

You classified the glow witch necklace in subheading 7117.90.9000, HTSUSA, which provides for “imitation jewelry: other: other: valued over 20 cents per dozen pieces or parts: other: other.” The protestant claims that the glow witch necklace should be classified in subheading 9505.90.4000, HTSUSA, as “Festive, carnival or other entertainment articles, including magic tricks and practical joke articles; parts and accessories thereof: other: confetti, paper spiral or streamers, party favors and noisemakers; parts and accessories thereof.”

ISSUE:

Whether the glow witch necklaces are classified as imitation jewelry or as festive articles?

LAW AND ANALYSIS:

Merchandise is classifiable under the HTSUSA in accordance with the General Rules of Interpretation (GRIs). The systematic detail of the HTSUSA 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 HTSUSA provisions under consideration are as follows:

7117 Imitation jewelry:

7117.90 Other:

Other:

Valued over 20 cents per dozen pieces or parts:

Other:

7117.90.7500 Of plastics

7117.90.9000 Other

9505 Festive, carnival or other entertainment articles, including magic tricks and practical joke articles; parts and accessories thereof:

9505.90 Other:

Confetti, paper spiral or streamers, party favors and noisemakers; parts and accessories thereof

In understanding the language of the HTSUSA, the Harmonized Commodity Description and Coding System Explanatory Notes (“ENs”) may be utilized. The ENs, although not dispositive or legally binding, provide a commentary on the scope of each heading of the HTSUSA, and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

The EN for heading 71.17, HTSUSA, states:

For puposes of this heading, the expression imitation jewelry, as defined in Note 11 to this Chapter, is restricted to small objects of personal adornment, such as those listed in paragraph (A) of the Explanatory Note to heading 71.13, e.g., rings, bracelets , necklaces, ear-rings, cufflinks, etc.,provided they do no incoporate precious metal or metal clad with precious metal (except as plating or as minor constituents as defined in Note 2(a) to this Chapter ), nor natural or cultured pearls, precious or semi-precious stones.... (emphasis added).

The protestant believes that the glow witch necklace should be classified as a “festive article” under heading 9505, HTSUSA. In Midwest of Cannon Falls, Inc. v. United States, 20 C.I.T. 123 (Ct. Int’l Trade, 1996), aff’d in part, rev’d in part, 122 F.3d 1423 (Fed. Cir. 1997) (hereinafter Midwest), the Court addressed the scope of heading 9505, HTSUSA, 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, HTSUSA 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.

In Park B. Smith, Ltd. v. United States, 347 F.3d 922, 927 (Fed. Cir. 2003), the court held that classification as a festive article under Chapter 95 required that the article satisfy two criteria:

It must be closely associated with a festive occasion; and The article is used or displayed principally during that festive occasion.

In a dispositive decision for the instant glow witch necklace classification, the Federal Circuit Court just issued a decision in Russ Berrie & Company, Inc. v. United States, Slip Op. 04-1084, 2004 U.S. App. LEXIS 18226 (Fed. Cir. August 27, 2004). The court considered whether jewelry items (lapel pins and earring sets one of which was a witch head) reflecting a Christmas and Halloween theme which did not contain precious metals, or precious or semi-precious stones should be classified as “imitation jewelry” of heading 7117, HTSUSA, or as “festive articles” of heading 9505, HTSUSA. Citing both Midwest and Park B. Smith, the court found that the Christmas and Halloween theme jewelry articles were more specifically classified as “imitation jewelry” in heading 7117, HTSUSA. We have included a copy of the Russ Berrie Company, Inc. v. United States decision with this ruling.

We find that the Federal Circuit decision in Russ Berrie Company, Inc. v. United States is dispositive in the instant glow witch necklace protest. We find that the essential character of the necklace is determined by the plastic of the witch head pendant. Therefore, the glow witch necklace is classified in subheading 7117.90.7500, HTSUSA, as “imitation jewelry: other: other: valued over 20 cents per dozen pieces or parts: other: of plastics.”

HOLDING:

In accordance with the decision in Russ Berrie Company, Inc. v. United States, the glow witch necklace (item no. 8778), is classified in subheading 7117.90.7500, HTSUSA, as “imitation jewelry: other: other: valued over 20 cents per dozen pieces or parts: other: of plastics.” The 2003 column one, general rate of duty rate is free. Duty rates are provided for the protestant’s convenience and are subject to change. The text of the most recent HTSUSA and the accompanying duty rates are provided on the World Wide Web at www.usitc.gov.

Since reclassification of the merchandise as indicated will result in the same rate of duty as claimed by the protestant, you are instructed to ALLOW the protest in full. In accordance with the Protest/Petition Processing Handbook (CIS HB, January 2002, pp. 18 and 21), you are to mail this decision, together with the CBP Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing the decision.

Sixty days from the date of the decision, the Office of Regulations and Rulings will make the decision available to CBP personnel, and to the public on the CBP Home Page on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.

Sincerely,

Myles B. Harmon, Director
Commercial Rulings Division

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