CLA-2-71:OT:RR:NC:N4:433
Aaron Cullen
CVS On-site Import Client Liaison
Barthco International, division of OHL
One CVS Drive
Woonsoket, RI 02895
RE: The tariff classification of Halloween Glow Necklaces from China.
Dear Mr. Cullen:
In your letter dated May 31, 2012, you requested a tariff classification ruling. As requested, the samples provided will be returned to you.
Item number 887235 is described as a Halloween Glow in the Dark Necklace Assortment. The item comes in three different styles; Glow Bat, Glow Ghost, and Glow Jack-O-Lantern. Each style contains one of the following: a plastic bat, ghost, or jack-o-lantern pendant; a light stick approximately six inches long; a safety lanyard; and a plastic connector. The plastic pendant is placed on one end of the light stick and the plastic connector is placed on the other. The lanyard is then tied to the connector to allow a person to where it around their neck. Each light stick is activated by bending or “cracking” (not breaking open) the plastic tube, and then shaking the tube to mix the chemical contents contained within. Each item is individually marketed as the Happy Halloween Glow Necklace.
Legal Note 11 in conjunction with Legal Note 9 (a) to Chapter 71 of the Harmonized Tariff Schedule of the United States (HTSUS) provides in pertinent part, that the expression “imitation jewelry” means any small articles of personal adornment for example rings, bracelets, necklaces, brooches, earrings, pendants, pins, and the like – not incorporating precious metal or metal clad with precious metal, except as minor constituents. We find that the Happy Halloween Glow Necklace(s), each having a cord and pendant, fall within the meaning of imitation jewelry, in that, they are representative of jewelry pieces worn around the neck as items of personal adornment.
In a dispositive decision for Christmas lapel pins and earrings and Halloween earrings, the Federal Circuit Court in Russ Berrie & Company, Inc. v. United States, Slip Op. 04-1084, 2004 U.S. App. LEXIS 18226 (Fed. Cir. August 27, 2004) considered whether jewelry items (lapel pins and earring sets) reflecting Christmas and Halloween themes, which did not contain precious metals, or precious or semi-precious stones, should be classified as “imitation jewelry” of heading 7117, Harmonized Tariff Schedule of the United States (HTSUS), or as “festive articles” of heading 9505, HTSUS. The Court found that the Christmas and Halloween theme jewelry articles were more specifically classified as “imitation jewelry” in heading 7117, HTSUS.
The three styles of necklaces are composed of different components (plastic and illuminating chemical mixture), and are therefore considered composite goods. Regarding the essential character of the necklace, the Explanatory Notes (ENs) to the Harmonized Tariff Schedule of the United States (HTSUS), at GRI 3 (b) (VIII), state that the factor which determines essential character will vary between different kinds of goods. It may for example, be determined by the nature of the materials or components, its bulk, quantity, weight or value, or by the role of a constituent material in relation to the use of the goods. When the essential character of a composite good can be determined, the whole product is classified as if it consisted only of the material or component that imparts the essential character to the composite good.
Unlike New York Ruling N213615 dated May 10, 2012, in which, the Glow Necklace or Glow Earrings, were merely tubes filled with an illuminating liquid substance attached to a chord or clip on earrings, the Happy Halloween Glow Necklaces have form which are provided by the bat, ghost and jack-o-lantern pendants. Consequently, we find that Headquarters Ruling, H076999 dated September 1, 2010, is not dispositive in determining the essential character to the instant merchandise, but rather, Headquarters Ruling 966777 dated September 1, 2004, in which, the essential character of a plastic, glow-in-the-dark witch necklace was found to be the witch head pendant, and not the glow sticks inside the pendant.
The applicable subheading for the Happy Halloween Glow Necklaces, will be 7117.90.7500, HTSUS, which provides for “Imitation jewelry: Other: Other: Valued over 20 cents per dozen pieces or parts: Other: Of plastics.” The rate of duty will be free.
Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on World Wide Web at http://www.usitc.gov/tata/hts/.
This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 C.F.R. 177).
A copy of the ruling or the control number indicated above should be provided with the entry documents filed at the time this merchandise is imported. If you have any questions regarding the ruling, contact National Import Specialist Neil H. Levy at (646) 733-3036.
Sincerely,
Thomas J. Russo
Director
National Commodity Specialist Division