CLA-2 RR:TC:MM 958782 MMC
Port Director
U.S. Customs Service
605 W. Fourth Avenue
Anchorage, AK 99501
RE: Protest 3195-94-100004; Gold/Pearl necklaces and bracelets;
Notes 2 and 4 to Chapter 71; ENs 71.13 and 71.16
Dear Port Director:
The following is our decision regarding Protest 3195-94-100004 concerning your action in classifying and assessing duty
on gold/pearl necklaces and bracelets under the Harmonized Tariff
Schedule of the United States (HTSUS). Pictures of the jewelry
were provided for our review.
FACTS:
The articles consist of 6 different pieces of jewelry
containing pearls and gold beads. They are described on invoices
as follows:
BC-3 a 7"x 3" fresh water (F.W.) pearl bracelet with 14
karat (K) gold finding.
BC-21 a 3 coil choker with 14K finding.
BC-44 an 18"x5" F.W. pearl necklace with 14K finding.
BC-46 a 16"x 6" F.W. pearl necklace with 14K finding.
BC-51 a 7"x6" F.W. pearl bracelet with 14K finding.
BC-52 a 16"x3" F.W. pearl necklace with 14K finding.
All of the pieces contain both pearls and gold beads which are
smaller than the pearls. Various patterns are created in the
pieces by the number of and space between the gold beads and
pearls.
BC-21 is a 3 stranded choker consisting of 3 rows of 16 pearls
separated by 1 column of 3 gold beads. The pattern repeats
itself 6 times to create the entire choker. BC-3 and 52 are also
3-stranded but consist of 2 strands of gold beads with 1 strand
of pearls between them. BC-21 is a single strand bracelet which
alternates one pearl then one gold bead. Pictures of BC-44 and
46 were not available.
All of the jewelry was entered under subheading 7113.19.50,
HTSUS, which provides for other jewelry with precious metal
because the importer believed that because the necklaces and
bracelets contain gold beads they are classifiable as jewelry of
precious metals. However, the necklaces and bracelets were
classified upon liquidation on October 8, 1993, under subheading
7116.10.20, HTSUS, as pearl jewelry. A protest was timely filed
on January 3, 1994. The headings under consideration are:
7113 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
7116 Articles of natural or cultured pearls, precious or
semiprecious stones (natural, synthetic or
reconstructed)
ISSUE:
Are the gold/pearl necklace and earrings classifiable as
jewelry of precious metal or jewelry of natural or cultured
pearls under the HTSUS?
LAW AND ANALYSIS:
The classification of merchandise under the HTSUS is
governed by the General Rules of Interpretation (GRI's). GRI 1,
HTSUS, states in part that for legal purposes, classification
shall be determined according to the terms of the headings and
any relative section or chapter notes. Chapter 71, HTSUS,
provides for natural or cultured pearls, precious or semiprecious
stones, precious metals, metal clad with precious metal, and
articles thereof; imitation jewelry; coin.
Notes 2 and 4 to Chapter 71, HTSUS, state, in pertinent part,
that:
2. (a) Heading Nos. 71.13...does not cover articles in
which precious metal or metal clad with precious
metal is present as minor constituents only, such
as minor fittings or minor ornamentation (for
example, monograms, ferrules and rims), and
paragraph (b) of the foregoing Note does not apply
to such articles.
(b) Heading No. 71.16 does not cover articles
containing precious metal or metal clad with
precious metal (other than as minor constituents).
4. (a) The expression "precious metal" means silver, gold
and platinum.
In an effort to determine if the subject jewelry is
considered pearl or gold for tariff purposes, the Harmonized
Commodity Description and Coding System Explanatory Notes (ENs)
may be consulted. The ENs, although not dispositive nor legally
binding, 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). EN 71.16, p. 963-964, states, in pertinent
part, that:
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;
(A) 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...
Under Note 2 (b) to this Chapter the goods of this heading
may contain precious metal or metal clad with precious metal
as minor constituents (e.g., a pearl necklace with a gold
fastener). On the other hand the heading does not cover
goods (e.g., earrings with gold clips) in which the precious
metal or metal clad with precious metal amounts to more than
minor constituents (heading 71.13)...
EN 71.13, p. 961 states, in pertinent part, that:
This heading covers articles of jewelry...wholly or partly
of precious metal or metal clad with precious metal, that
is:
(A) Small objects of personal adornment (gem-set or not)
such as rings, bracelets, necklaces, brooches, ear-rings,
neck chains, watch-chains and other ornamental chains; fobs,
pendants, tie-pins and clips, cuff-links, dress-studs,
buttons, etc.; religious or other crosses; medals and
insignia; hat ornaments (pins, buckles, rings, etc.);
ornaments for handbags; buckles and slides for belts, shoes,
etc.; hair-slides, tiaras, dress combs and similar hair
ornaments...
...To fall in this heading these articles must contain
precious metal or metal clad with precious metal (including
base metal inlaid with precious metal) to an extent
exceeding minor constituents; (thus a cigarette case of base
metal with a simple monogram of gold or silver remains
classified as an article of base metal). Subject to this
condition the goods may also contain pearls (natural,
cultured or imitation), precious or semi-precious stones
(natural, synthetic or reconstructed), imitation stones, or
parts of tortoise-shell, mother of pearl, ivory, amber
(natural or agglomerated), jet or coral...
Customs is of the opinion that, classification of jewelry
containing precious metal or metal clad with precious metal must
occur on a case-by-case basis as such classification requires
determining whether a piece of jewelry contains precious metal
or metal clad with precious metal to an extent exceeding minor
constituents.
An examination of the pictures of the subject jewelry
indicates that the jewelry contains gold beads and pearls strung
together. While some pieces, most notably BC-21, have few gold
beads, the gold beads nevertheless occur in regular intervals,
appear to be part of the pieces' designs and create a character
and nature the pieces would not have in their absence.
Therefore, we find the subject pieces to contain precious metal
to an extent exceeding minor constituents. Because the jewelry
pieces contain precious metal to an extent exceeding minor
constituents, they are classifiable under heading 7113, HTSUS,
specifically, subheading 7113.19.50, 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.
HOLDING:
The protest should be GRANTED. The jewelry is classifiable
under subheading 7113.19.50, HTSUS, with a column one duty rate
of 6.1% ad valorem.
In accordance with section 3A(11)(b) of Customs Directive
099 3550-065, dated August 4, 1993, Subject: Revised Protest
Directive, this decision should be mailed by your office to the
protestant no later than 60 days from the date of this letter.
Any reliquidation of the entry in accordance with this decision
must be accomplished prior to the mailing of the decision. Sixty
days from the date of this decision, the Office of Regulations
and Rulings will take steps to make the decision available to
Customs personnel via the Customs Rulings Module in ACS and to
the public via the Diskette Subscription Service, Freedom of
Information Act and other public access channels.
Sincerely,
John Durant, Director
Tariff Classification Appeals
Division