us-cbp-cross-rulings-hq-080498•HQ 080498: Tariff classification of a woman's pin
HQ 080498: Tariff classification of a woman's pin
us-cbp-cross-rulings-hq-080498HQ 080498: Tariff classification of a woman's pinGuidance
Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.
HQ 080498
December 28, 1989
CLA-2 CO:R:C:G 080498 DFC
CATEGORY: Classification
TARIFF NO.: 6217.10.0030
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.
-2-
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.
-3-
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);
-4-
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.
-5-
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.
-6-
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.
-7-
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
-8-
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.
-9-
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
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