CLA-2 CO:R:C:G 080498 DFC

Louis S. Shoichet, Esq. Siegel, Mandell & Davidson, P.C. Counselors At Law One Whitehall Street New York, New York 10004

RE: Tariff classification of a woman's pin

Dear Mr. Shoichet:

In your letters dated June 10, 1987, April 29, 1988, and October 12, 1988, you inquired as to the tariff classification of a woman's pin under the Tariff Schedules of the United States (TSUS), and also under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). This merchandise is produced in China and/or other Far Eastern countries. Since the HTSUSA replaced the TSUS effective January 1, 1989, our reply will be limited to classification under the HTSUSA.

FACTS:

The sample submitted may be described as a woman's bar pin consisting of an oval rhinestone ornament, a metallic gold colored "mylar" fabric and a clasp. The pin is constructed by attaching the rhinestone decoration to the mylar fabric by means of a tightly wrapped ribbon.

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You assert a belief that under the TSUS this merchandise was commonly and commercially understood to be jewelry and was either a named object of personal adornment as set forth in Schedule 7, Part 6, Subpart A, Headnote 2(a), TSUS, or similar thereto. For these reasons you maintain that the pin would have been classifiable under the provision for other jewelry and other objects of personal adornment valued over 20 cents per dozen pieces or parts in item 740.41, TSUS, formerly 740.38, TSUS.

You point out that in New York Ruling Letter (NYRL) 819705 dated September 10, 1986, Customs held that a virtually identical article was classifiable under the provision for other women's, girls', or infants' wearing apparel, ornamented: of man-made fibers: not knit: other: other, in item 384.26, TSUS. You maintain that under pertinent case law and administrative rulings, the result reached in the cited ruling was incorrect.

With respect to the HTSUSA, you maintain that the bar pin is properly classifiable under subheading 7117.90.5000, HTSUSA, as imitation jewelry, other, other, valued over 20 cents per dozen pieces or parts, or under subheading 6307.90.9000, HTSUSA, as other made-up articles, other.

ISSUE:

Is the woman's bar pin jewelry within the purview of that term as used in the TSUS, and the HTSUSA?

LAW AND ANALYSIS:

TSUS ANALYSIS

Information before this office based on a survey of jewelers in the Washington Metropolitan area is that the women's bar pin is sold by jewelry retailers and is commonly and commercially understood to be jewelry. Also, it is our opinion that the pin is similar to the brooches named as an example of jewelry in Schedule 7, Part 6, Subpart A, Headnote 2(a), TSUS.

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HTSUSA ANALYSIS

You have taken the position that if the bar pin is classifiable as jewelry under the TSUS, it is for the same reasons classifiable as jewelry under subheading 7117.90.5000, HTSUSA. As support for this position you point to the cross- reference tables prepared by the U.S. International Trade Commission which correlates item 740.41, TSUS, to subheading 7117.9050, HTSUSA, which carries the same rate of duty provided for item 740.41, TSUS. You claim that this correlation, which results in consistency of duty treatment, is in accord with the President's guidelines concerning the conversion of the TSUS to the Harmonized System which mandated the avoidance, where practicable, of any changes in rates of duty for individual products. Thus, you would find an intent here to classify the bar pin in Chapter 71, HTSUSA.

It is obvious that the correlation referred to above does not in itself require classification of the bar pin under Chapter 71, HTSUSA. It should be noted that the TSUSA/HTSUSA cross-reference tables are designed to assist the user in translating a known classification in the TSUS into a likely classification under the HTSUSA, and should not be viewed as a substitute for the traditional tariff classification process. Classification determinations can only be predicated on the condition of an article as imported, the applicable article provisions and the rules of classification set out in the HTSUSA, and the body of customs practices and regulations relevant to the importation. See 53 FR 27447 (1988).

Legal Note 3(f) to Chapter 71, HTSUSA, reads as follows:

3. This chapter does not cover:

(f) Goods of section XI (textiles and textile articles);

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You claim that the above-cited note does not automatically preclude classification of the bar pin in Chapter 71, HTSUSA, because the application of Note 3(f) is dependent on the legal conclusion that the bar pin is an article of Section XI. Further, the bar pin is not prima facie classifiable only in Section XI based on its textile portion but is also presumptively classifiable in Chapter 71, HTSUSA, by virtue of its rhinestone component.

It is your view that the first proviso of General Rule of Interpretation GRI 3(a), HTSUSA, controls the classification of the instant merchandise. That rule reads in its entirety as follows:

(a) The heading which provides the most specific description shall be preferred to headings providing a more general description. However, when two or more headings each refer to part only of the materials or substances contained in mixed or composite goods or to part only of the items in a set put up for retail sale, those heading are to be regarded as equally specific in relation to those goods, even if one of them gives a more complete or precise description of the goods.

In the immediate situation, the competing provisions to subheading 7117.90.5000, HTSUSA, are subheading 6217.10.0030, HTSUSA, as other made-up clothing accessories, accessories of man-made fibers and subheading 6307.90.9000, HTSUSA, as other made up articles, other, other.

You argue that the second proviso to GRI 3(a), supra, is not applicable because subheading 6217.10.0030 and 6307.90.9000, HTSUSA, have reference to a material or substance (i.e., textile fabric, by application of Note 1 to Chapter 63), whereas subheading 7117.90.5000, HTSUSA, covers articles described on the basis of their use without reference to any constituent material or substance (except as regards what they may not contain, i.e., pearls, precious or semiprecious stones, precious metal or solely or principally base metal). Thus, because the instant case does not involve the type of comparison envisaged by this proviso, it is submitted that the specificity requirements of GRI 3(a), control here.

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In order to clarify the application of GRI 3(a), you cite paragraph IV of the Explanatory Note thereto which provides that "[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." You state that the bar pin is designed solely for use as an article of personal adornment. Therefore, you argue that because imitation jewelry is specifically defined in the HTSUSA as comprising small objects of personal adornment, the description in subheading 7117.90.5000, HTSUSA, clearly identifies the bar pin with regard to its design and use.

By way of contrast, you assert that the descriptions in subheadings 6217.10.0030 and 6307.90.9000, HTSUSA, are distinctly less specifically descriptive of the bar pin. The description "other made-up clothing accessories" can cover a wide variety of articles, including those which may be functional as opposed to purely decorative; thus, this tariff description is not specifically directed to the bar pin which has commercial significance only on the basis of its decorative nature as an article of jewelry. The description "other made- up articles" is a basket provision intended to cover an even wider variety of goods not covered more specifically elsewhere; thus, this tariff description is even less specific when applied to the bar pin at issue. For the reasons previously stated you insist that because the comparison mandated by GRI 3(a) is one of relative specificity of heading (or subheading) wording, subheading 7117.90.5000, HTSUSA, is clearly more specific.

We do not agree that the comparison mandated by GRI 3(a) compels the conclusion that the provision for jewelry in subheading 7117.90.5000, HTSUSA, is more specific than the provision for made-up clothing accessories of man-made fibers in subheading 6217.10.0030, HTSUSA, or the provision for other made up articles in subheading 6307.90.9000, HTSUSA. It should be noted that Explanatory Note II to GRI 3 provides in pertinent part that "[t]he rule can only take effect provided the terms of headings or section or chapter notes do not otherwise require." The provision for jewelry in subheading 7117.90.5000, HTSUSA, cannot be looked at in a vacuum. Certainly, the limitation placed on that subheading by Legal Note 3(f) to that chapter which excludes textile articles from classification thereunder makes it impossible to conclude that the specificity requirements of GRI 3(a) control classification of the bar pin.

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Inasmuch as classification cannot be determined by the application of GRI 3(a), we must resort to GRI 3(b) which reads as follows:

(b) Mixtures, composite goods consisting of different materials or made up of different components, and goods put up in sets for retail sale, which cannot be classified by reference to 3(a), shall be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable.

The Explanatory Note for GRI 3(b) states in pertinent part as follows:

(VIII) The factor which determines essential character will vary as between different kinds of goods. It may, for example, be determined by the nature of the material or component, its bulk, quantity, weight or value, or by the role of a constituent material in relation to the use of the goods.

You submit that the rhinestone ornament imparts the essential character to the bar pin. You assert that the rhinestone ornament plays the most significant role in relation to the overall use of the pin. Specifically, the rhinestone ornament is the sine qua non of the bar pin in that it is what provides the bar pin its uniquely decorative cachet and allows the bar pin to be used as jewelry as intended. Further, removal of the rhinestone ornament would result in a product of minimal decorative use, whereas the rhinestone ornament standing alone could still be used in a manner similar to the use of the bar pin as a whole. Further, you claim that because the rhinestone ornament imparts the essential character to the pin that classification as jewelry under subheading 7117.90.5000, HTSUSA, is appropriate.

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.

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Inasmuch as we have determined that the textile component imparts the essential character to the bar pin it becomes necessary to determine whether the pin is classifiable under subheading 6217.10.0030, HTSUSA, as other made-up clothing accessories, accessories of man-made fibers or under subheading 6307.90.9000, HTSUSA, as other made up articles, other, other.

You state that subheading 6217.10.0030, HTSUSA, is not the appropriate classification for the bar pin. You claim that the Explanatory Note to heading 6217, HTSUSA, provides guidance which substantiates your view on this matter. Specifically, each of the examples listed in the Explanatory Note has one or more characteristics which readily distinguish them from the bar pin at issue: 1) they play a primarily functional as opposed to decorative role (e.g., belts, muffs, sleeve protectors, removable linings); 2) they are designed to be worn directly on the body rather than attached to wearing apparel (e.g., muffs, stockings, socks, sockettes); 3) they are intended to be worn or attached at a specific location on wearing apparel or on the body (e.g., belts, muffs, collars, removable linings, stockings, socks, sockettes); and/or 4) they are intended to be sewn or otherwise attached, so as to become permanent fixtures, to wearing apparel (e.g., shoulder pads, sleeve protectors, epaulettes, labels, badges, emblems). By contrast, the bar pin 1) serves a purely decorative function; 2) is suitable only for attachment to wearing apparel and not directly on the body; 3) is designed and intended to be worn at any of several locations on a women's garment (e.g., at the back, on the left or right chest area or at the shoulder); and 4) is intended to be only a temporary addition to, rather than a permanent fixture of, wearing apparel, principally in connection with clothes worn during the evening. You insist that the bar pin is readily distinguishable from the products intended to be covered by heading 6217, with the result that there is no legitimate philosophical or practical basis for grouping the bar pin with those products under that heading.

Based on our reading of the Explanatory Note to heading 6217, there is nothing contained therein which would preclude the bar pin from being classified thereunder. You cite examples in the Explanatory Note which you claim distinguishes them from the bar pin at issue. We submit that military or ecclesiastical sashes listed as exemplars in the Explanatory Note, especially those incorporating precious or semiprecious

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stones, do not fall within the 4 categories listed above by you. Specifically, the sashes perform primarily a decorative function. They are not designed to be worn directly on the body. They are not intended to be attached at a specific location on wearing apparel or to be sewn or otherwise attached so as to become permanent fixtures to wearing apparel. In view of the foregoing, it is our opinion that the bar pin which does not fit into your categories of uses and characteristics is indistinguishable from the sashes listed in the Explanatory Note as exemplars of other made-up clothing accessories.

Explanatory Note (11) to heading 6217 states that "[t]he heading covers *** pockets, sleeves, collars, collarettes, wimples, fallals of various kinds (such as rosettes, bows, ruches, frills and flounces), bodice-fronts, jabots (including those combined with collars), cuffs, yokes, lapels and similar articles."

You have expressed the opinion based on a review of the French Harmonized System Legal and Explanatory Note texts that the reference to bows in the English Explanatory Note (11) to heading 6217 was not meant to include the bar pin at issue. You indicate that the French texts are relevant in determining the scope of the English texts because in the case of Chapter 62 the Explanatory Notes were originally drafted in French and the English Explanatory Notes were based on (i.e., translated from or aligned on) the French version.

It is correct that the English Explanatory Note was translated from the French. It is to be noted that great efforts went in to aligning the two versions. If you believe that there is an alignment problem, you may raise it in the context of the Procedures to Implement Sections 1209 and 1210 of the Omnibus Trade and Competitiveness Act of 1988, published at 53 FR 45646 (1988). As a national matter, we follow the English text only. Also, as you are aware, the Explanatory Note is not law but is indicative of the scope of the HS headings.

You argue that because the bar pin is intended to be worn on rather than incorporated as part of wearing apparel it is jewelry for tariff purposes. It should be noted that the Explanatory Note to heading 6217 lists accessories that may be worn on top of, underneath, sandwiched between, or extending away from wearing apparel. Consequently, your bar pin cannot be distinguished from the other clothing accessories enumerated therein.

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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.

You state that the Explanatory Note covers textile belts with any kind of decoration. The lack of such language in the area of fallals is alleged as an intention to not cover decorated bows in heading 6217. You assert that the belts are so described because they are more commonly so decorated. It is our view that the drafters' motivation on this point is unclear. Whatever the case, no implication can be drawn from silence on this point as it relates to fallals. The nature of trimmings is such that some amount of decoration would be common.

HOLDING:

The bar pin is classifiable under subheading 6217.10.0030, HTSUSA, as other made-up clothing accessories, and accessories of man-made fibers.

Sincerely

John Durant, Director Commercial Rulings Division

6cc: AD NY Seaport 1cc: Phil Robins 1cc: Gail Anderson DFCahill gc/3/3/89 3/889 fnl/gc/3/13/89 080498/peh