CLA 2 RR:CR:GC 961931 MMC
Mr. Joel K. Simon
Serko & Simon
One World Trade Center
Suite 3371
New York, NY 10048
RE: Earrings, Necklaces and Pins with various holiday motifs
Dear Mr. Simon:
This is in reference to your June 9,1998, ruling request on behalf of Russ Berrie, and Company, Inc., and Papel Giftware Accents and Collectibles, concerning the classification of earrings, necklaces and pins with various holiday motifs, under the Harmonized Tariff Schedule of the United States (HTSUS). Samples were submitted for our review. A June 17, 1999, meeting was held to discuss the matter. A July 16, 1999, additional submission outline your position taken at our meeting, was received.
FACTS:
The articles under consideration are various earrings, pins, necklaces with holiday motifs.
Item # 25505-6 is a wooden Santa pin. It measures approximately 2 and _ inches high. Item # 25504-9 is a wooden Christmas Tree pin. It measures approximately 2 inches high. A metal pin clasp is attached to each back.
Item # L86102 is described as Christmas tree ball earrings. The items are small glass balls decorated like Christmas tree ball ornaments measuring approximately _ of an inch in diameter. They are attached to surgical steel hooks from the top of the ball.
Item #19034 is a pair of metal Jack-O’-Lantern earrings and necklace. The earrings are ball shaped and have one Jack-o’-Lantern face cut into each of them. They are attached to surgical steel hooks from the “stem portion.” The necklace consists of a ball shaped Jack-O’-Lantern with a carved face on 2 sides. This ball portion is attached to a necklace cord. Each Jack-O’-Lantern in the set has a bell inside.
Item #L87197 is a pin which depicts a gold cherub-like angel holding a heart. In the center of the heart is a glass-like diamond cut chip. It is attached to pink paperboard with a button like clasp. The following is stated in red lettering:
THE LEGEND OF ST. VALENTINE PIN Valentine was brave, young priest who was jailed for refusing to renounce his Christian faith. While in prison, Valentine sent a message of love, comfort, and faith to his loved ones. This message would always end “Remember Your Valentine” that is why to this day, St. Valentine remains the symbol of love.
ISSUE:
Whether the earrings, necklace and pins are classifiable as imitation jewelry, under heading 7117, HTSUS, or as "festive articles" under heading 9505, HTSUS.
LAW AND ANALYSIS:
Classification under the HTSUS, is made in accordance with the General Rules of Interpretation (GRIs). The systematic detail of the HTSUS 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 HTSUS headings under consideration are as follows:
7117 [i]mitation jewelry
9505 [f]estive, carnival or other entertainment articles, including magic tricks and practical joke articles; parts and accessories thereof
Notes 9 and 11 to Chapter 71, HTSUS, state, in pertinent part, that the scope of the term "imitation jewelry" includes any small objects of personal adornment (gem set or not) such as rings, bracelets, necklaces, brooches, earrings, watch chains, fobs, pendants, etc., not incorporating pearls, precious metal or precious or semiprecious stones. The subject earrings, pins and necklaces meet this definition. As such, they are clearly described by heading 7117, HTSUS, specifically subheading 7117.90, which provides for other imitation jewelry.
You claim that the articles are also described by heading 9505, HTSUS, and offer 4 different reasons for your claim: that the articles fall within the scope of either the term “ornament” or “fancy dress” and therefore, within the class “other festive articles,” that, in general, articles used for personal adornment are not precluded from falling within the class “festive articles,” that these articles meet the use test outlined in United States v. Carborundum Company, 63 CCPA 98, C.A.D. 1172, 536 F.2d 373 (1976), cert. denied, 429 U.S. 979 (hereinafter Carborundum) and that even if the articles are described by both headings under GRI 3(c) they are classifiable in heading 9505, HTSUS.
Fancy Dress
In Midwest of Cannon Falls v. United States, 122 F.2d 1423 (Fed. Cir. 1997) [hereinafter Midwest] the court held that the scope of heading 9505, HTSUS, included articles “used in celebration of and for entertainment on a joyous holiday, and that all of the articles were prima facie classifiable as “festive articles”.” No piece of jewelry was considered in the case.
The term “fancy dress” appears in the Explanatory Notes to Chapter 95. The Harmonized Commodity Description And Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System. While not legally binding on the contracting parties, and therefore not dispositive, the EN’s provide a commentary on the scope of each heading of the Harmonized System and are thus useful in ascertaining the classification of merchandise. Customs believes the EN’s should always be consulted. See T.D. 89 80, 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).
Among other items, heading 9505, HTSUS, provides for festive, carnival or other entertainment articles. The EN 95.05 states, in part, 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:
* * *
(3) Articles of fancy dress, e.g., masks, false ears and noses, wigs...and paper hats. However, the heading excludes fancy dress of textile materials, of Chapter 61 or 62.
You argue that the jewelry is of the same class or kind of articles as the false, ears and noses, wigs etc.. We disagree. The term “fancy dress” is defined as “a masquerade costume”Webster's II New World Dictionary, Third College Edition (1988), and the exemplars are consistent with that; articles used to dress up and hide one’s identity. Unlike articles of fancy dress, this jewelry has no disguise aspect. One does not wear it to take on a new persona or mask one’s identity. As such, the jewelry can not be considered an article of fancy dress for tariff purposes.
Articles principally used for personal adornment
In Headquarters Ruling Letter (HRL) 961833, dated May 19, 1999, we classified Gift Box Brooches. We indicated that the court, in Midwest, 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 if such utilitarian articles are a three dimensional representation of an accepted symbol for a recognized holiday. As the brooches were articles of personal adornment, and not either household decorative articles which were representations of an accepted symbol for a recognized holiday or utilitarian/functional articles which were a three dimensional representation of an accepted symbol for a recognized holiday, Customs held that they were not described by heading 9505, HTSUS.
Like the brooches of HRL 961833, the subject earrings, pins and necklaces are articles of personal adornment. As such, heading 9505, HTSUS, does not describe them.
United States v. Carborundum Company
You claim the subject jewelry meets the principal use test outlined in Carborundum. In making a determination on the Midwest articles, the court applied the general criteria for classification set forth in Carborundum. Therefore, for those articles, holidays and symbols not specifically recognized in Midwest, Customs applies the general criteria for classification set forth in Carborundum. Those criteria include: general physical characteristics, the expectation of the ultimate purchaser, channels of trade, environment of sale (accompanying accessories, manner of advertisement and display), use in the same manner as merchandise which defines the class, economic practicality of so using the import, and recognition in the trade of this use.
You assert that the fact that the jewelry has Halloween and Christmas motifs, that the ultimate purchaser will wear them during the appropriate holiday, that they are purchased during their respective holiday season, sold at the same time as ornamental articles for the particular season are used to “celebrate the holiday” and would be “ridiculous” to wear any other time of the year are all evidence that the jewelry meets the Carborundum test and therefore are described by 9505, HTSUS. While this evidence, indicates that the jewelry is, to some extent used in a festive manner, we do not believe it demonstrates the jewelry’s principal use, which is personal adornment.
We are of the opinion that the jewelry remains jewelry even if it has a motif associated with a holiday. The jewelry does not loose its identity as jewelry simply by virtue of what it depicts. The decoration of the jewelry with festive motifs does not prevent its use as jewelry. It remains an object used to adorn the person not the home. As such, it is not described by heading 9505, HTSUS.
GRI 3(c)
Finally, you argue that the jewelry is described by both headings, and as such under GRI 3(c) it is classifiable in heading 9505, HTSUS. For the sake of argument, if the jewelry was described by both headings, it would not be classifiable according to GRI 1.
GRI 3(a) states, in pertinent part, that:
When...goods are, prima facie, classifiable under two or more headings, classification shall be effected as follows:
(a) [t]he heading which provides the most specific description shall be preferred to headings providing a more general description...
The EN to GRI 3 states that:
(I) ...[t]hese methods operate in the order in which they are set out in the Rule. ... The order of priority is therefore (a) specific description; (b) essential character; (c) heading which occurs last in numerical order.
...(III) [t]he first method of classification is provided in Rule 3 (a), under which the heading which provides the most specific description of the goods is to be preferred to a heading which provides a more general description.
(IV) [i]t is not practicable to lay down hard and fast rules by which to determine whether one heading more specifically describes the goods than another, but in general it may be said that:
(a) [a] description by name is more specific than a description by class (e.g., shavers and hair clippers, with self contained electric motor, are classified in heading 85.10 and not in heading 85.08 as electro mechanical tools for working in the hand or in heading 85.09 as electro mechanical domestic appliances with self contained electric motor). [emphasis added]
(b) [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. [emphasis added]
Applying this analysis to the subject article, the term “imitation jewelry” more clearly identifies the article than the term “festive article” as the description “imitation jewelry” is by name while the description “festive article” is by class. As the term “imitation jewelry”, not “festive article”, more clearly identifies the subject jewelry, if GRI 3 were applied in this case, by operation of GRI 3(a) the jewelry would be classifiable as “imitation jewelry” in heading 7117, HTSUS, specifically subheading 7117.90, HTSUS. As classification could be determined by GRI 3(a), GRI 3(c) would not be considered.
HOLDING:
Whether by operation of GRI 1 or GRI 3(a), the earrings, pins and necklaces are classifiable in subheading 7117.90, HTSUS, which provides for other imitation jewelry. Classification of the article at the 8 digit subheading level will depend upon the value of the articles per dozen pieces or parts.
Sincerely,
John Durant, Director
Commercial Rulings Division