CLA-2 OT:RR:CTF:TCM H063616 NCD
Ms. Marlene Collins
Liz Claiborne, Inc.
One Claiborne Avenue
North Bergen, NJ 07047
RE: Modification of NY N053948; classification of jewelry charms containing cubic zirconia stones
Dear Ms. Collins:
This is in response to your letter of April 29, 2009, submitted on behalf of Liz Claiborne, Inc. (“Liz Claiborne”), requesting reconsideration of New York Ruling Letter (NY) N053948, dated April 8, 2009. NY N053948 was issued to Liz Claiborne by U.S. Customs and Border Protection (CBP) in response to Liz Claiborne’s March 5, 2009 letter requesting a ruling as to the proper classification of three types of jewelry charms, two of which contain cubic zirconia stones, under the Harmonized Tariff Schedule of the United States (HTSUS). We have reviewed NY N053948, have determined that it is partially incorrect, and, for the reasons set forth below, are modifying that ruling.
Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. §1625(c)(1)), as amended by section 623 of Title VI, notice of the proposed action was published in the Customs Bulletin, Vol. 50, No. 24, on June 15, 2016. No comments were received in response to the notice.
FACTS:
The jewelry charms at issue in NY N053948 were described by CBP, based upon inspection of samples and review of pictures and product specifications, as follows:
Style number YJRU3179 is a one inch long Bat charm composed of brass that is plated with rhodium and palladium. The bat figure features wings ornamented with glass gemstones and one cubic zirconium. The back of the figure is inscribed “bite my couture.” The charm has a brass clasp and clip for attaching to the charm bracelet.
Style number YJRU3175 is a Mouse & Cheese charm. The mouse figure is composed of brass plated with a worn rhodium antique finish. The clasp and clip are composed of brass. The charm has a metal base inscribed with the trademark “Juicy Couture”. The sculpted cheese form is composed of plastic studded with one glass gemstone and three cubic zirconium gemstones.
Style number YJRU3181 is a cone-shaped Teepee charm measuring 1.25 inches high with a diameter of 1 inch at its widest point. This item is composed of brass that is plated with Ion gold and features a hinged bottom that opens to reveal a small figurine with a tribal headdress. The Teepee charm has brass ornamentation, and a brass clasp and clip for attaching to the charm bracelet. The bottom is inscribed “How Juicy.”
CBP classified all three types of charms in heading 7117, HTSUS, specifically in subheading 7117.19.90, HTSUS, which provides for “Imitation jewelry: Of base metal, whether or not plated with precious metal: Other: Other: Other.” In its April 29, 2009 letter, Liz Claiborne contends that two of the jewelry charm types, specifically Style Numbers YJRU3179 (“Bat charm”) and YJRU3175 (“Mouse & Cheese charm”), are instead properly classified in heading 7116, HTSUS, specifically subheading 7116.20.05, HTSUS, which provides for “Articles of natural or cultured pearls, precious or semiprecious stones (natural, synthetic or reconstructed): Of precious or semiprecious stones (natural, synthetic or reconstructed): Articles of jewelry: Valued not over $40 per piece.” Liz Claiborne does not contest CBP’s classification of Style Number YJRU3181 (“Teepee charm”) in subheading 7117.19.90, HTSUS.
ISSUE:
Whether the jewelry charms containing cubic zirconia stones are properly classified in heading 7116, HTSUS, as articles of semiprecious stones or in heading 7117, HTSUS, as imitation jewelry.
LAW AND ANALYSIS:
Merchandise imported into the United States is classified under the HTSUS. Tariff classification is governed by the principles set forth in the General Rules of Interpretation (GRIs) and, in the absence of special language or context which requires otherwise, by the Additional U.S. Rules of Interpretation. The GRIs and the Additional U.S. Rules of Interpretation are part of the HTSUS and are to be considered statutory provisions of law for all purposes.
GRI 1 requires that classification be determined first 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 heading and legal notes do not otherwise require, the remaining GRIs 2 through 6 may then be applied in order.
The Harmonized Commodity Description and Coding System Explanatory Notes (“ENs”) constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS 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 HTSUS provisions under consideration are as follows:
7116 Articles of natural or cultured pearls, precious or semiprecious stones (natural, synthetic or reconstructed):
7116.20 Of precious or semiprecious stones (natural, synthetic or reconstructed):
Articles of jewelry:
7116.20.05 Valued not over $40 per piece
7117 Imitation jewelry:
Of base metal, whether or not plated with precious metal:
7117.19 Other:
Other:
7117.19.90 Other
We initially consider whether the subject jewelry charms are prima facie classifiable in heading 7116, HTSUS, which provides, inter alia, for articles of semiprecious stones. Note 2(b) to Chapter 71 states as follows:
Heading 7116 does not cover articles containing precious metal or metal clad with precious metal (other than as minor constituents).
EN 71.16 states, in relevant part, as follows:
This heading covers all articles (other than those excluded by Notes 2 (B) and 3 to this Chapter), wholly of natural or cultured pearls, precious or semi-precious stones, or consisting partly of natural or cultured pearls or precious or semi-precious stones, but not containing precious metals or metals clad with precious metal (except as minor constituents) (see Note 2 (B) to this Chapter).
It thus includes:
Articles of personal adornment and other decorated articles (e.g., clasps and frames for handbags, etc.; combs, brushes; ear-rings; cuff-links, dress-studs and the like) containing natural or cultured pearls, precious or semi-precious stones (natural, synthetic or reconstructed), set or mounted on base metal (whether or not plated with precious metal), ivory, wood, plastics, etc.
With respect to the tariff term “semiprecious stone,” EN 71.04 states as follows:
These stones are used for the same purposes as the natural precious or semi-precious stones of the two preceding headings.
Synthetic precious and semi-precious stones. This expression covers a range of chemically produced stones which either:
have essentially the same chemical composition and crystal structure as a particular natural stone (e.g., ruby, sapphire, emerald, industrial diamond, piezo-electric quartz); or
because of their colour, brilliance, resistance to deterioration, and hardness are used by jewellers, goldsmiths and silversmiths in place of natural precious or semi-precious stones, even if they do not have the same chemical composition and crystal structure as the stones which they resemble, e.g., yttrium aluminium garnet and synthetic cubic zirconia, both of which are used to imitate diamond.
According to the plain language of heading 7116 and the above-cited EN 71.16 excerpt, heading 7116 applies to articles of personal adornment that contain precious or precious stones. The tariff term “semiprecious stone” is not defined in the HTSUS, but EN 71.04 identifies cubic zirconia as an example of such. It is CBP’s position, consistent both with EN 71.04 and with lexicographic sources, that cubic zirconia qualifies as a semiprecious stone for tariff classification purposes. See Headquarters Ruling Letter (HQ) H007655, dated September 28, 2007 (citing EN 71.04 and Merriam Webster Dictionary in deeming zirconia a semiprecious stone); HQ 950769, dated December 31, 1991; NY N270890, dated December 3, 2015; and NY N270428, dated November 12, 2015. An article of personal adornment to which at least one cubic zirconia is affixed can therefore be described as a product of heading 7116, HTSUS. See HQ H007655; NY N270890; NY N270428; and NY N264240, dated May 11, 2015 (all of which classify articles containing single cubic zirconia stones in heading 7116).
Here, as stated in NY N053948 and confirmed by the pictures and product specifications enclosed with Liz Claiborne’s March 5, 2009 letter, the Bat and Mouse & Cheese charms each contain a cubic zirconia. Moreover, it is undisputed that both charms, while made primarily of base metal, do not contain any precious metal. Therefore, in accordance with the above-cited ENs and CBP precedent, both charms can be described as articles of semiprecious stones within the meaning of heading 7116, HTSUS, and are prima facie classifiable there. We note that the Teepee charm, which does not contain a cubic zirconia or any other type of precious or semiprecious stone, is not classifiable in heading 7116, HTSUS.
We next consider whether the subject charms are classifiable in heading 7117, HTSUS, which provides for imitation jewelry. Note 11 to Chapter 71 states as follows:
For the purposes of heading 7117, the expression "imitation jewelry" means articles of jewelry within the meaning of paragraph (a) of note 9 above (but not including buttons or other articles of heading 9606, or dress combs, hair slides or the like, or hairpins, of heading 9615), not incorporating natural or cultured pearls, precious or semiprecious stones (natural, synthetic or reconstructed) nor (except as plating or as minor constituents) precious metal or metal clad with precious metal.
EN 71.17 states, in pertinent part, as follows:
For the purposes of this heading, the expression imitation jewelry, as defined in Note 11 to this Chapter, is restricted to small objects of personal adornment…provided they do not incorporate precious metal or metal clad with precious metal (except as plating or as minor constituents as defined in Note 2 (A) to this Chapter, e.g., monograms, ferrules and rims) nor natural or cultured pearls, precious or semi-precious stones (natural, synthetic or reconstructed).
Pursuant to Note 11 to Chapter 71, as explained in EN 71.17, articles to which one or more precious or semiprecious stones are affixed cannot be described as imitation jewelry within the meaning of heading 7117, HTSUS. It is therefore CBP’s position that such articles, including those incorporating cubic zirconia stones, are not classifiable in heading 7117. See HQ H007655 (ruling that necklaces and bracelets containing cubic zirconia stones are excluded from heading 7117 by application of Note 11 to Chapter 71); see also HQ 959831, dated April 1, 1997 (“The wax castings with diamonds or precious stones are excluded from classification in heading 7117 by virtue of chapter note 11, since they contain precious stones.”); and NY N125019, dated October 14, 2010 (“By application of Legal Note 11 to Chapter 71, HTSUS, the subject merchandise containing a semi-precious "synthetic gemstone of CZ" is excluded from heading 7117, HTSUS.”).
Here, as discussed above, the Bat and Mouse & Cheese charms at issue each contain a cubic zirconia, which is a semiprecious stone. In effect, they cannot be described as imitation jewelry within the meaning of heading 7117, HTSUS, and are accordingly excluded from the heading. We note that the Teepee charm, which contains a proportionally minor ion gold component but does not contain any precious or semiprecious stones, is properly classified in heading 7117, HTSUS.
HOLDING:
By application of GRI 1, the jewelry charms identified as Style Numbers YJRU3179 and YJRU3175 are properly classified in heading 7116, HTSUS, specifically in subheading 7116.20.0580, HTSUSA (Annotated), which provides for: “Articles of natural or cultured pearls, precious or semiprecious stones (natural, synthetic or reconstructed): Of precious or semiprecious stones (natural, synthetic or reconstructed): Articles of jewelry: Valued not over $40 per piece: Other.” The 2016 column one general rate of duty is 3.3% ad valorem.
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 the internet at www.usitc.gov/tata/hts/.
EFFECT ON OTHER RULINGS:
New York Ruling Letter N053948, dated April 8, 2009, is hereby MODIFIED as set forth above with respect to classification of the jewelry charms identified as Style Numbers YJRU3179 and YJRU3175, but the classification of the jewelry charm designated Style Number YJRU3181 remains in effect.
In accordance with 19 U.S.C. §1625(c), this ruling will become effective 60 days after its publication in the Customs Bulletin.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division