CLA-2-71:OT:RR:NC:N4:433
Joerg Saxler
Attorney-in-Fact
Osmium-Institut zur Inverkehrbringung
und Zertifizierung von Osmium GmbH
Höllriegelskreuther Weg 3
82065 Baierbrunn
Germany
RE: The tariff classification and marking of synthetic precious metal bars and synthetic precious metal jewelry exported from Germany to the United States. Correction to Ruling Number NY N293583.
Dear Mr. Saxler:
This replaces Ruling Number N293583 dated February 20, 2018. Ruling Number N293583 described the Osmium fineness as 99.99995% (“6 nines”) when in fact, it should be 99.9995% (5 nines). A complete corrected ruling follows.
In your letter dated January 22, 2018, you requested a tariff classification ruling on behalf of Ingo Wolf, the General Manager of Osmium-Institut zur Inverkehrbringung. Illustrative literature and product descriptions were provided. This ruling will address five items of the same class and kind imported and packaged for retail sale.
Item 1, Variant 1, Article no. K, “Big Round Bar,” is 99.9995% Osmium. The round bar is 1mm thick; 50mm in diameter; and weighs approximately 30 grams. The item is imported and packaged for retail sale in an individual box primarily for investment purposes.
Item 2, Variant 1, Article no. F, “Medium Edged Bar,” is 99.9995% Osmium. The rectangle shaped bar is 1mm thick; 5mm to 50mm in width; 10mm to 30mm in height; and weighs up to 30 grams. The item is imported and packaged for retail sale in an individual box primarily for investment purposes.
Item 2, Variant 2, Article no. D3/D4, “Small Round Bar,” is 99.9995% Osmium. The round bar is 1mm thick; 3mm to 4mm in diameter; and weighs up to 0.26 grams. The item is imported and packaged for retail sale in an individual box primarily for investment purposes.
Item 3, Variant 1, Article no. R, “Small Curved Bar,” is 99.9995% Osmium and is a finished jewelry ring. The ring is 5mm in width; 20mm in diameter; and weighs approximately 5.8 grams. The ring is imported and packaged for retail sale in an individual box.
Item 4, Variant 1, Article no. T, “Small Curved Bar with Titanium Housing” is made of 99.9995% Osmium and Pure Titanium and is a finished jewelry ring. The ring is 7mm in width; 21mm in diameter; and weighs 8.3 grams of which the Osmium weighs 5.8 grams and the pure titanium housing weighs 2.5 grams. The ring is imported and packaged for retail sale in an individual box.
Classification under the Harmonized Tariff Schedule of the United States (HTSUS) is made in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that the classification of goods shall be determined 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 headings and legal notes do not otherwise require, the remaining GRIs 2 through 6 may then be applied in order.
Legal Note 4 (a) to Chapter 71 of the HTSUS provides for the expression "precious metal" means silver, gold and platinum. Legal Note 4 (b) states: The expression "platinum" means platinum, iridium, osmium, palladium, rhodium and ruthenium.
Consistent with synthetic gemstones that are physically identical to their natural gemstone counterparts which are mined from the Earth and have the same physical properties and chemical composition, it is our position that synthetic “crystallized Osmium” if having the same physical and chemical properties of the precious metal [platinum] will be treated as the noble metal, platinum. If the Osmium round and rectangle bars require no further manufacturing, and are only certified and packaged for retail sale in Germany, they are classifiable within the provisions of heading 7115, HTSUS.
The applicable subheading for Item 1, Variant 1, Article no. K, “Big Round Bar” and Item 2, Variant 2, Article no. D3/D4, “Small Round Bar,” will be 7115.90.6000, HTSUS, which provides for “Other articles of precious metal or of metal clad with precious metal: other; other; other.” The rate of duty will be 4 percent ad valorem.
The applicable subheading for Item 2, Variant 1, Article no. F, “Medium Edged Bar,” will be 7115.90.0590, HTSUS, which provides for “Other articles of precious metal or of metal clad with precious metal: Other: Articles of precious metal, in rectangular or near rectangular shapes, containing 99.5 percent or more by weight of a precious metal and not otherwise marked or decorated than with weight, purity, or other identifying information; Other.” The duty rate will be 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 World Wide Web at https://hts.usitc.gov/current.
Legal Note 1 (b), Legal Note 2 part (a), and Legal Note 9 to Chapter 71 of the HTSUS are applicable and pertinent to the classification of the rings. Legal Note 1 (b), HTSUS, provides in pertinent part that all articles consisting wholly or partly of precious metal or metal clad with precious metal are to be classified in Chapter 71, HTSUS. Legal Note 2 (a), HTSUS, provides that “Headings 7113, 7114 and 7115 do 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.”
Legal Note 9, HTSUS, provides that 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 pillboxes, powder boxes, chain purses or prayer beads).
We find that the crystallized Osmium set in the channels of the 5mm and 7mm rings, provide more than minor ornamentation to the jewelry pieces. In accordance with Legal Note 1 (b), Legal Note 2 part (a), and Legal Note 9 to Chapter 71 of the HTSUS, the 99.9995% Osmium Small Curved Bar/ring (5mm in width) with undisclosed base metal housing and Small Curved Bar/ring (7mm in width) with titanium housing are classifiable within the precious metal jewelry provisions of heading 7113, HTSUS.
The applicable subheading for Item 3, Variant 1, Article no. R, “Small Curved Bar” and Item 4, Variant 1, Article no. T, “Small Curved Bar with titanium housing” will be 7113.19.5090, Harmonized Tariff Schedule of the United States (HTSUS), as there is no indication that the crystallized Osmium meets the ISO standard of platinum, which provides for “Articles of jewelry and parts thereof, of precious metal or of metal clad with precious metal: Of precious metal, whether or not plated or clad with precious metal: Of other precious metal, whether or not plated or clad with precious metal: Other: Other: Other.” The rate of duty will be 5.5% 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 World Wide Web at https://hts.usitc.gov/current.
You presented a set of circumstances wherein the 99.9995% Osmium round and rectangle bars, and rings will be manufactured in Switzerland from raw Osmium and certified, packaged and labeled in Germany. A sample was not provided but an illustrative rendering was listed in the ruling request. You are proposing that the merchandise be marked with the country of origin on the outermost container with a paper sticker marked with the words “Made in Switzerland.”
Part 134, Customs Regulations (19 CFR Part 134), implements the country of origin marking requirements of 19 U.S.C. §1304. The marking statute, section 304, Tariff Act of 1930, as amended (19 U.S.C.1304), provides that, unless excepted, every article of foreign origin (or its container) imported into the U.S. shall be marked in a conspicuous place as legibly, indelibly and permanently as the nature of the article (or its container) will permit, in such a manner as to indicate to the ultimate purchaser in the U.S. the English name of the country of origin of the article.
Pursuant to 19 CFR 134.1(b), “country of origin” means the country of manufacture, production, or growth of any article of foreign origin entering the United States. Further work or material added to an article in another country must effect a substantial transformation in order to render such other country the country of origin. A substantial transformation results when a new and different article emerges from the processing having a distinctive name, character or use. Alternatively within the same context, a substantial transformation of an article occurs when it is used in manufacture, which results in an article having a name, character, or use differing from that of the article before its processing. See United States v. Gibson-Thomsen Co., Inc., 27 CCPA 269 (1940). As there is no substantial transformation of the 99.9995% Osmium round and rectangle bars, and rings in Germany, only certification and packaging operations, the country of origin for the merchandise concerned is Switzerland.
Section 134.41(b), Customs Regulations (19 CFR 134.41(b)), mandates that the ultimate purchaser in the U.S. must be able to find the marking easily and read it without strain. Section 134.1(d), defines the ultimate purchaser as generally the last person in the U.S. who will receive the article in the form in which it was imported. If an imported article is to be sold at retail in its imported form, the purchaser at retail is the ultimate purchaser.
With regard to the permanency of a marking, Section 134.41(a), Customs Regulations (19 CFR 134.41(a)), provides that as a general rule marking requirements are best met by marking worked into the article at the time of manufacture. For example, it is suggested that the country of origin on metal articles be die sunk, molded in or etched. However, Section 134.44, Customs Regulations (19 CFR 134.44), generally provides that any marking that is sufficiently permanent so that it will remain on the article until it reaches the ultimate purchaser unless deliberately removed is acceptable.
Your proposed marking of the merchandise concerned, describing the item, listing the purity of the Osmium, made in Switzerland, and certified and packaged in Germany by said company is acceptable in accordance with 19 CFR 134.46, Code of Federal Regulations.
This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 C.F.R. 177).
A copy of the ruling or the control number indicated above should be provided with the entry documents filed at the time this merchandise is imported. If you have any questions regarding the ruling, contact National Import Specialist Neil H. Levy at [email protected].
Sincerely,
Steven A. Mack
Director
National Commodity Specialist Division