CLA-2 CO:R:C:M 952104 DWS
Ms. Mary E. Wright
Grunfeld, Desiderio, Lebowitz, Silverman & Wright
One Boston Place, Suite 1650
Boston, MA 02108
RE: Reconsideration of HQ 089880; Imitation Jewelry;
Imitation Gemstones; Imitation Precious or Semiprecious
Stones; Plastic; Glass; GRI 2(a); GRI 3(a);
Chapter 70, Additional U.S. Note 5; U.S. v. Astra Trading
Corp.
Dear Ms. Wright:
This is in response to your letter of June 24, 1992,
requesting the reconsideration of HQ 089880, dated October 18,
1991, concerning the classification of certain plastic articles
under the Harmonized Tariff Schedule of the United States
(HTSUS). You have also requested our decision as to the
classification of certain corresponding glass articles under the
HTSUS.
FACTS:
The nine samples which were the subject of HQ 089880 have
been resubmitted for our examination. The samples are labeled as
style nos. 59/FLP01, 59/FLP02, 59/FLP06, 59/FLP12, 59/FLP13,
59/FLP17, 59/FLP18, 59/FLP22, and 59/FLP23. Except for style no.
59/FLP23, all of the styles are plastic shapes (drops, ball,
star, heart, ring, etc.). With the exception of style no.
59/FLP23, all of the styles have holes at their tops.
Style no. 59/FLP23 has no hole at its top. It is a plastic
"nugget" which is intended to resemble a precious or semiprecious
stone.
It is our understanding that the glass articles, a
classification of which is requested, are similar in kind to the
above plastic articles.
It is claimed that the subject merchandise is used in the
manufacture of imitation jewelry, figurines, and wearing apparel.
ISSUE:
Whether the plastic and glass articles are classifiable as
imitation jewelry, imitation precious or semiprecious stones, or
articles of plastic under the HTSUS?
LAW AND ANALYSIS:
Classification of merchandise under the HTSUS is in
accordance with the General Rules of Interpretation (GRI's),
taken in order. GRI 1 provides that classification is determined
according to the terms of the headings and any relative section
or chapter notes.
In HQ 089880, the subject styles, except for style no.
59/FLP23, were held classifiable as unfinished imitation jewelry
under subheading 7117.90.50, HTSUS, which provides for:
"[i]mitation jewelry: [o]ther: [o]ther: [v]alued over 20 cents
per dozen pieces or parts." Style no. 59/FLP23 was held
classifiable under subheading 3926.90.40, HTSUS, which provides
for: "[o]ther articles of plastics and articles of other
materials of headings 3901 to 3914: [o]ther: [i]mitation
gemstones."
It is claimed that all of the plastic articles, not just
style no. 59/FLP23, are imitation gemstones and therefore should
be classifiable under subheading 3926.90.40, HTSUS. It is also
claimed that all of the glass articles are imitation precious or
semiprecious stones and are classifiable under subheading
7018.10.20, HTSUS, which provides for: "[g]lass beads, imitation
pearls, imitation precious or semiprecious stones and similar
glass smallwares: [i]mitation precious or semiprecious stones."
We will first deal with the all of the plastic articles
except for style no. 59/FLP23. As you agree with HQ 089880
concerning style no. 59/FLP23, that classification is not in
issue. It is classifiable under subheading 3926.90.40, HTSUS.
Chapter 70, additional U.S. note 5, HTSUS, states that:
[f]or the purposes of subheading 7018.10.20, HTSUS, the
term "imitation precious or semiprecious stones" means
glass made into shapes suitable for use in jewelry or for
other
ornamental purposes in a manner similar to natural
gemstones, whether or not in imitation thereof, but does
not
include natural gemstones, synthetic gemstones,
reconstructed natural gemstones or imitation pearls.
You attempt to apply the notes in chapter 70, HTSUS, to the
plastic articles because there are no such notes concerning
imitation gemstones in chapter 39, HTSUS. This is inappropriate
for two reasons. First, chapter 70 expressly covers glass
articles, not those of plastic. Secondly, there is no language
in the notes in chapter 70, HTSUS, which expressly states that
those notes are to be applied to goods of other chapters under
the HTSUS. We believe it would be inappropriate to apply notes
concerning glass imitation gemstones to plastic articles by
implication. Therefore, notes which affect goods classifiable in
chapter 70, HTSUS, cannot be used to affect the classification of
goods classifiable in chapter 39, HTSUS.
Because the notes in chapter 70, HTSUS, do not apply to the
classification of the plastic articles, only headings 3926 and
7117, HTSUS, aptly describe the plastic articles. Heading 3926,
HTSUS, applies because the articles are of plastic. Heading
7117, HTSUS, applies because it is our position that the articles
are unfinished imitation jewelry.
GRI 2(a) states that:
[a]ny reference in a heading to an article shall be taken to
include a reference to that article incomplete or
unfinished, provided that, as entered, the incomplete or
unfinished article has the essential character of the
complete or finished article. It shall also include a
reference to that article complete or finished (or falling
to be classified as complete or finished by virtue of this
rule), entered unassembled or disassembled.
We find that the plastic articles are described in heading
7117, HTSUS, as they impart the essential character of finished
imitation jewelry through the presence of holes at their tops.
Both headings 3926 and 7117, HTSUS, describe the articles.
Thus, even if they are principally used to make figurines, which
you claim but have not proven to our satisfaction, that claim is
not dispositive, and GRI 3(a) must be consulted. In part, it
states that "[t]he heading which provides the most specific
description shall be preferred to headings providing a more
general description. . . ."
It is our position that heading 7117, HTSUS, an eo nomine
provision, is more specific than heading 3926, HTSUS, which is a
general, material composition heading. An eo nomine designation
must, unless a legislative intent to the contrary is clearly
indicated, be preferred to terms of general description and to
enumerations which are broader in scope and less specific.
U.S. v. Astra Trading Corp., 44 CCPA 8, 11, C.A.D. 627 (1956).
No such legislative intent is present in this instance.
Therefore, we find that the plastic articles, except for
style no. 59/FLP23, are classifiable under subheading 7117.90.50,
HTSUS.
It is our position that the subject glass articles meet the
definition of "imitation precious or semiprecious stones" as
stated under chapter 70, additional U.S. rule 5, HTSUS. The
articles are "glass made into shapes suitable for use in jewelry
or for other ornamental purposes". Therefore, it is our position
that the glass articles are classifiable under subheading
7018.10.20, HTSUS.
HOLDING:
All of the styles of plastic articles, except for style no.
59/FLP23, are classifiable under subheading 7117.90.50, HTSUS.
The general, column one rate of duty is 11 percent ad valorem.
Style no. 59/FLP23 is classifiable under subheading
3926.90.40, HTSUS. The general, column one rate of duty is 2.8
percent ad valorem.
The glass articles are classifiable under subheading
7018.10.20, HTSUS. The general, column one rate of duty is 2.8
percent ad valorem.
HQ 089880 is affirmed in full.
Sincerely,
John Durant, Director