CLA-2 RR:CTF:TCM 967811 tmf
Port Director
Customs and Border Protection
610 S. Canal Street
Room 306
Chicago, IL 60607
RE: Eligibility of charm bracelet jewelry; Protest and Application for Further Review (AFR) 4101-04-100669
Dear Sir or Madam:
This is in reply to your correspondence forwarding the Application for Further Review of Protest (AFR) 4101-04-100669, which was filed by DHL Worldwide Express on behalf of their client, RJMJ Sales Italia Collection.
FACTS:
The protest and request for Application for Further Review (hereinafter “AFR”), which was timely filed on December 15, 2004, is against Customs and Border Protection's (CBP) classification and liquidation of certain charm bracelet jewelry that was entered on January 24, 2004. The entry was liquidated on December 10, 2004 and classified in subheading 7117.90.9000, Harmonized Tariff Schedule of the United States (HTSUS), which provides for imitation jewelry, other than of base metal, whether or not plated with precious metal.
The entry at issue consists of seventeen styles of charm link jewelry described as "Italian Charms" that are made of 14K and 18K gold letters or symbols that are soldered onto flat links of stainless steel. The charms are not clasps, but links that depict letters or symbols that can be put together to form a bracelet.
The importer states that the entry agent inadvertently made entry using subheading 7117.90.9000, HTSUS, which provides for imitation jewelry, other than of base metal, whether or not plated with precious metal. However, they state that they have always imported the merchandise in subheading 7113.19.3000, which provides for parts and clasps of precious metals.
ISSUE:
Whether the Application for Further Review of Protest No. 4101-04-100669 meets the requirements for review by Headquarters pursuant to 19 C.F.R. §174.24.
LAW AND ANALYSIS:
The criteria required for the granting of a request for further review are set forth in 19 C.F.R. §174.24 of the Customs and Border Protection (CBP) Regulations. This section states, in pertinent part, that further review of a protest which otherwise would be denied by the Port Director will be accorded to a party filing an application for further review which meets the requirements of §174.25 when the decision against which the protest was filed:
(a) Is alleged to be inconsistent with a ruling of the Commissioner of Customs or his designee, or with a decision made at any port with respect to the same or substantially similar merchandise;
(b) Is alleged to involve questions of law or fact which have not been ruled upon by the Commissioner of Customs or his designee or by the Customs courts;
(c) Involves matters previously ruled upon by the Commissioner of Customs or his designee or by the Customs courts but facts are alleged or legal arguments presented which were not considered at the time of the original ruling; or
(d) Is alleged to involve questions which the Headquarters Office, United States Customs Service, refused to consider in the form of a request for internal advice pursuant to §177.11(b)(5) of this chapter.
Before we can consider whether the subject merchandise is classifiable within heading 7113 or 7117, HTSUS, the protestant must sufficiently establish a basis for AFR.
Upon reviewing this protest to determine whether AFR is warranted, we find that the instant protest does not contain any relevant statements or evidence that substantiate that AFR is warranted in this case. The protestant has not provided any basis for AFR by establishing that the instant protest contains any distinguishable facts or legal arguments from any prior decisions issued by CBP. In addition, the protestant has not established that the Port's denial action is inconsistent with any prior CBP rulings, that the protest involves any questions of law or fact that have not been ruled upon by CBP, nor that the protest involves any questions which the Headquarters Office has refused to consider in the form of a request for internal advice.
Therefore, as the protestant has not established AFR in this case, we find that AFR should not have been approved.
We are returning the protest file to you for disposition. However, we would like to provide some guidance below regarding the classification of merchandise in heading 7113, HTSUS. In regard to this case, CBP has issued prior rulings on substantially similar merchandise. You cite to New York Ruling Letter J88035, dated August 28, 2003 and NY J87575, dated August 13, 2003. In NY J88035, CBP classified charm bracelet links described as made of 18K gold, cubic zirconia and enamel soldered onto flat links of stainless steel in subheading 7113.19.5000, HTSUS, which provides for "Articles of jewelry and parts thereof, of precious metal or of metal clad with precious metal:…Of other precious metal, whether or not plated or clad with precious metal: Other: Other." The links were made in different designs and imported in continuous lengths. After importation, the buyer could choose different links to form a bracelet. Links could be added or removed to personalize the bracelet.
In NY J87575, CBP classified stainless steel links that could be broken into various lengths to create individual links or bracelets. They were made of 36 continuous stainless steel links that were enameled and outlined in 18K gold. The links could be taken apart and names/dates could be lasered onto them individually. CBP classified the merchandise as “other articles of steel or iron” in subheading 7326.90.8587, HTSUS.
However, the merchandise of NY J87575 is not the same as the instant articles. First, the links of NY J87575 were of base metal. Second, they were imported as parts to be used as individual links or bracelets, which resulted in classification within heading 7326, HTSUS. However, the instant charm links are made of 14K and 18K gold letters or symbols that are soldered onto flat links of stainless steel. We refer to Headquarters Ruling Letter 087620, dated November 13, 1990, which distinguishes soldering from cladding, and states, in pertinent part:
For the purposes of Chapter 71, a distinction is drawn between "plating" and "cladding." The expression "metal clad with precious metal" is defined in the Explanatory Notes to Chapter 71…as follows:
[M]aterial made with a base of metal, one or more surfaces of which have been covered to any thickness with precious metal by soldering, brazing, welding, hot-rolling or similar mechanical means. [emphasis added]
The expression "metal clad with precious metal" also includes base metal inlaid with precious metal.
HQ 087620 continues by adding:
The Explanatory Notes to Chapter 71 makes clear that “cladding” and "plating" are two distinct processes of applying a metal to another surface. The Explanatory Notes state the following:
[M]etal clad with precious metal, as defined in this
Chapter, should not be confused with base metals plated
with precious metals by electrolysis, vapour deposition,
spraying or immersion in a solution of salts of precious metals, etc.
In sum, gold-plating and silver-plating are coatings of precious metal, whereas, cladding is a mechanical bonding of a precious metal to a base metal.
In this case, the subject articles are 14K and 18K gold accents (e.g., symbols or letter) that are soldered onto flat links of stainless steel and imported as parts.
We conferred with the National Import Specialist for this merchandise along with a representative of the Jewelry Vigilance Committee regarding the jewelry industry’s understanding of “cladding” and “plating” jewelry. After reviewing how the goods are formed, it is our view that the gold accents are not clad onto the stainless steel base metal, but merely attached. As such, links such as these are classifiable based on the gold accents, since the accents impart the essential character to the links. Thus, links such as the instant links would be classifiable in subheading 7113.19.5000, HTSUS, which provides for parts and clasps of precious metals.
HOLDING:
We find that the Protest fails to meet the criteria of 19 C.F.R. 174.24 and 174.25. Therefore, the Protestant’s request for further review should not have been approved. The protest file is being returned for appropriate action by your office.
Sincerely,
Myles B. Harmon, Director
Commerce and Trade Facilitation Division