CLA-2 RR:CTF:TCM H236058 EGJ
Cari Grego
Dollar Tree Stores, Inc.
500 Volvo Parkway
Chesapeake, VA 23320
Re: Revocation of NY I87310 and NY I87401: Play Sets with Jewelry and Plastic Adhesive Gems
Dear Ms. Grego:
This is in reference to New York Ruling Letters (NY) I87310, dated October 22, 2002, and NY I87401, dated October 22, 2002, both issued to you concerning the tariff classification of “Jewelry Fashion Play Sets” under the Harmonized Tariff Schedule of the United States (HTSUS). U.S. Customs and Border Protection (CBP) classified both of the play sets according to the sets’ plastic adhesive body gems under subheading 7117.90, HTSUS, which provides for imitation jewelry. We have reviewed NY I87310 and NY I87401 and find them to be in error. For the reasons set forth below, we hereby revoke NY I87310 and NY I87401.
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 proposing to revoke NY I87310 and NY I87401 was published on May 7, 2014, in Volume 48, Number 18, of the Customs Bulletin. No comments were received in response to the notice.
FACTS:
In NY I87310, the subject merchandise is a “Jewelry Fashion Play Set” (the bracelet set). The bracelet set consists of six metal bangle bracelets and plastic adhesive body gems. These items are packaged together for retail sale.
In NY I87401, the subject merchandise is also a “Jewelry Fashion Play Set” (the necklace set). The necklace set consists of one metal necklace with faux plastic mounted gems, two metal earrings with faux plastic mounted gems and plastic adhesive body gems. These items are packaged together for retail sale.
ISSUES:
1. What is the tariff classification of the bracelet set of NY I87310?
2. What is the tariff classification of the necklace set of NY I87401?
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. 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 and, unless otherwise required, according to the remaining GRIs taken in their appropriate order. GRI 6 requires that the classification of goods in the subheadings of headings shall be determined according to the terms of those subheadings, any related subheading notes and mutatis mutandis, to the GRIs 1 through 5.
The HTSUS provisions at issue are as follows:
3926 Other articles of plastics and articles of other materials of headings 3901 to 3914:
3926.90 Other:
3926.90.40 Imitation gemstones …
* * *
7103 Precious stones (other than diamonds) and semi-precious stones, whether or not worked or graded but not strung, mounted or set; ungraded precious stones (other than diamonds) and semi-precious stones, temporarily strung for convenience of transport:
* * *
7113 Articles of jewelry and parts thereof, of precious metal or of metal clad with precious metal …
* * *
7117 Imitation jewelry:
Of base metal, whether or not plated with precious metal:
7117.19 Other:
7117.19.90 Other …
* * *
7117.90 Other:
Other:
Valued not over 20 cents per dozen pieces or parts:
7117.90.55 Other …
* * *
Valued over 20 cents per dozen pieces or parts:
7117.90.75 Other …
* * *
Note 9 to Chapter 71 states as follows:
9. For the purposes of heading 7113, the expression "articles of jewelry" means:
(a) Any small objects of personal adornment (for example, rings, bracelets, necklaces, brooches, earrings, watch chains, fobs, pendants, tie pins, cuff links, dress studs, religious or other medals and insignia); and
(b) Articles of personal use of a kind normally carried in the pocket, in the handbag or on the person (for example, cigar or cigarette cases, snuff boxes, cachou or pill boxes, powder boxes, chain purses or prayer beads).
These articles may be combined or set, for example, with natural or cultured pearls, precious or semiprecious stones, synthetic or reconstructed precious or semiprecious stones, tortoise shell, mother-of-pearl, ivory, natural or reconstituted amber, jet or coral.
* * *
Note 11 to Chapter 71 states as follows:
11. 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.
* * *
In both rulings, CBP determined that the plastic adhesive gems were classified under heading 7117, HTSUS, as imitation jewelry. The rulings do not discuss the classification of the other items in the play sets. Therefore, we will first review the tariff classification of the plastic adhesive gems.
Applying GRI 1, Note 11 to Chapter 71 explains that imitation jewelry means “articles of jewelry,” defined in Note 9(a) to Chapter 71, that do not consist of cultured pearls, precious/semiprecious stones or precious metal. As imitation jewelry of heading 7117, HTSUS, only imitates the articles of jewelry which are described in Note 9(a), we will not apply the description of jewelry set forth in Note 9(b) to the instant merchandise.
Note 9(a) states that, for the purposes of heading 7113, HTSUS, “articles of jewelry” are small articles of adornment. Note 9(a) also provides a list of examples, which include rings, earrings, bracelets and other articles of jewelry. While paragraph (a) of Note 9 defines articles of jewelry as “small articles of personal adornment,” we cannot read paragraph (a) without the context of the first clause of Note 9. Note 9 begins with “for the purposes of heading 7113, the expression ‘articles of jewelry’ means …” As such, imitation jewelry must imitate articles of jewelry which are described in paragraph (a) and are classified under heading 7113, HTSUS.
Heading 7113, HTSUS, provides for “articles of jewelry and parts thereof, of precious metal or of metal clad with precious metal.” Thus, imitation jewelry must imitate small articles of personal adornment of precious metal, or of metal clad with precious metal. Per Note 9, imitation jewelry may be combined or set with imitations of pearls, precious or semiprecious stones, tortoise shell, mother-of-pearl, ivory, amber, jet or coral.
The plastic adhesive gems do not imitate articles of jewelry clad with any type of metal. Rather, they imitate precious stones which are classified in heading 7103, HTSUS. As the plastic adhesive gems do not imitate jewelry of heading 7113, HTSUS, they cannot be classified as imitation jewelry under heading 7117, HTSUS.
The plastic adhesive gems are imitation gemstones. At importation, they adhere to a paper backing. The plastic adhesive gems are classified under heading 3926, HTSUS, which provides for other articles of plastics. They are specifically provided for in subheading 3926.90.40, which provides for imitation gemstones of plastics.
Now we turn to the other items in the play sets. In the bracelet set, the only other items are six metal bangle bracelets. Note 9(a) to Chapter 71 specifically names bracelets as an example of jewelry classifiable under heading 7113, HTSUS. As the metal bracelets do not contain precious metal, stones or pearls, they are classified as imitation jewelry under heading 7117, HTSUS. They are specifically provided for in subheading 7117.19, HTSUS, which provides for imitation jewelry of base metal.
In the necklace set, the other items are a metal necklace with faux plastic mounted gems and two metal earrings with faux plastic mounted gems. Note 9(a) to Chapter 71 specifically names necklaces and earrings as examples of jewelry classifiable under heading 7113, HTSUS. As the necklace and earrings do not contain any precious metal, stones or pearls, they are classified as imitation jewelry under heading 7117, HTSUS.
There are two subheadings which each cover a portion of the necklace and earrings. First, the base metal portion of these items is classified under subheading 7117.19, which provides for imitation jewelry of base metal. Next, the plastic gem portion of these items is classified under 7117.90, HTSUS, which provides for imitation jewelry of other materials.
GRI 6 provides for the classification of goods within subheadings. GRI 6 states that the tariff classification shall be made according to the terms of those subheadings, any related subheading notes and mutatis mutandis, to the GRIs 1 through 5. As the necklace and earrings consist of two or more components which are classified under different subheadings, the necklace and earrings are composite goods.
GRI 3(b) governs the classification of composite goods and provides that:
When by application of rule 2(b) or for any other reason, goods are, prima facie, classifiable under two or more headings, classification shall be effected as follows:
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.
Thus, a composite good is classified according to the component which imparts the good’s essential character. In order to identify a composite good’s essential character, the U.S. Court of International Trade (CIT) has applied the factors listed in EN VIII to GRI 3(b) which are “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.” The Home Depot v. United States, 427 F. Supp. 2d 1278, 1293 (Ct. Int’l Trade 2006). With regard to the component which imparts the essential character, the CIT has stated it is “that which is indispensable to the structure, core or condition of the article, i.e. what it is.” Id. citing A.N. Deringer, Inc. v. United States, 66 Cust. Ct. 378, 383 (1971).
Applying the aforementioned factors, we will first examine the necklace. The base metal comprises the bulk and weight of the necklace. Looking at quantity, the number of plastic gemstones outnumbers the number of necklace chains, as one necklace chain includes more than one plastic gem. We do not have any information on the value of each component.
Also, we must look to the role of each component. The base metal provides the setting for the plastic gems. However, the plastic gems are much brighter and more colorful than the base metal. They provide the visual interest to the necklace. As jewelry is defined as an article of adornment, we find that the plastic gems contribute more to the role of the necklace than the base metal. For all of these reasons, we find that the plastic gems impart the essential character to the necklace. The necklace is therefore classified under subheading 7117.90, HTSUS, as imitation jewelry of other materials. According to the ruling request, a dozen of the necklaces would be valued over 20 cents per dozen. As such, the necklace is specifically classified under subheading 7117.90.75, which provides for imitation jewelry of plastics valued over 20 cents per dozen pieces.
We find that the earrings are so similar in construction to the necklace that the plastic gems also impart their essential character. Therefore, the earrings are also classified under subheading 7117.90, HTSUS, as imitation jewelry of other materials.
As we have classified each item in the play sets, we must now determine the tariff classification of each play set. The metal bangle bracelets are packaged together with plastic adhesive gems for retail sale. GRI 3(b) governs the classification of goods put up in sets for retail sale and provides that:
When by application of rule 2(b) or for any other reason, goods are, prima facie, classifiable under two or more headings, classification shall be effected as follows:
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 Harmonized Commodity Description and Coding System Explanatory Notes (“ENs”) constitute the official interpretation of the HTSUS. While not legally binding or 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 at the international level. See T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989).
The EN(X) to GRI 3(b) provides, in pertinent part, that:
(X) For the purposes of this Rule, the term “ goods put up in sets for retail sale ” shall be taken to mean goods which :
(a) consist of at least two different articles which are, prima facie, classifiable in different headings. Therefore, for example, six fondue forks cannot be regarded as a set within the meaning of this Rule;
(b) consist of products or articles put up together to meet a particular need or carry out a specific activity; and
(c) are put up in a manner suitable for sale directly to users without repacking (e.g., in boxes or cases or on boards).
The metal bangle bracelets are classified under heading 7117, HTSUS, and the plastic gems are classified under heading 3926, HTSUS. They are put up together for the purpose of providing the consumer with fun fashion accessories. They are packaged in a manner suitable for sale directly to users without repacking. For all of these reasons, the bracelet set is a GRI 3(b) retail set. As such, the bracelet set is classified according to the item which imparts the essential character to the set.
As stated above, the factors to consider when determining essential character are 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. Applying these factors to the bracelet set, we find that the bracelets comprise more of the set’s bulk and weight than the plastic gems. Additionally, the bracelets likely have a greater value than the plastic gems. As to the role of the set, the bracelets likely contribute more to the role of accessorizing. The plastic adhesive gems are likely disposable and worn only once. However, the consumer can reuse the bracelets over and over again. For all of these reasons, we find that the metal bracelets impart the essential character to the bracelet set. Thus, the bracelet set is classified under subheading 7117.19, HTSUS, which provides for imitation jewelry of base metal.
Next, we examine the necklace set. Like the bracelet set, the necklace, earrings and adhesive plastic gems are classified under different headings or subheadings. They are also put up together for providing the consumer with accessories. Finally, they are packaged together for retail sale so that they are suitable for sale directly to consumers without repackaging. As such, we will also classify the necklace set according to GRI 3(b).
Applying the essential character factors to the necklace set, we find that the necklace comprises more of the set’s bulk and weight than the earrings or the plastic gems. Additionally, the necklace likely has a greater value than the earrings or the plastic gems. As to the role of the set, the necklace and earrings likely contribute more to the role of accessorizing. The plastic adhesive gems are likely disposable and worn only once. However, the consumer can reuse the necklace and earrings over and over again. For all of these reasons, we find that the necklace imparts the essential character to the necklace set. Thus, the necklace set is classified under subheading 7117.90.75, HTSUS, which provides for imitation jewelry of plastics valued over 20 cents per dozen pieces.
HOLDING:
By application of GRI 3(b), the bracelet set of NY I87310 is classified under subheading 7117.19.90, HTSUS, which provides for “Imitation jewelry: of base metal: other: other: other …” The 2014 column one, general rate of duty is 11 percent ad valorem.
By application of GRI 3(b) and GRI 6, the necklace set of NY I87401 is classified under subheading 7117.90.75, HTSUS, which provides for “Imitation jewelry: other: other: valued over 20 cents per dozen pieces or parts: other: of plastics …” The 2014 column one, general rate of duty is 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 the World Wide Web at www.usitc.gov.
EFFECT ON OTHER RULINGS:
NY I87310, dated October 22, 2002, and NY I87401, dated October 22, 2002, are hereby revoked.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division