CLA-2 OT:RR:CTF:TCM H011762 JER
Mr. Arthur W. Bodek
Grunfeld, Desiderio, Lebowitz,
Silverman & Klestadt LLP
399 Park Avenue, 25th Floor
New York, NY 10022-4877
RE: Classification of certain metal chain fashion belts; Revocation of New York Ruling Letters (NY) K82771, NY K86961, and NY K87657, and Modification of NY K86935
Dear Mr. Bodek:
Pursuant to your binding ruling requests sent on behalf of Liz Claiborne, Inc. (Claiborne), the Bureau of Customs and Border Protection (CBP) issued four ruling letters concerning the classification of certain women’s belts. In these rulings, New York Ruling Letter, (NY) K82771, dated February 6, 2004, NY K86961, dated June 22, 2004, NY K87657, dated July 19, 2004, and NY K86935, dated June 21, 2004, the belts were classified as “articles of imitation jewelry” under heading 7117 of the Harmonized Tariff Schedule of the United States (HTSUS). We have since reviewed these rulings and find them to be in error.
Pursuant to section 625(c), Tariff Act of 1930 (19 U.S.C. §1625(c)), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act, Pub. L. 103-182, 107 Stat. 2057, 2186 (1993), notice of the proposed modifications and revocation was published on March 5, 2008, in the Customs Bulletin, Volume 42, No. 11. No comments were received in response to this notice.
FACTS:
Eight styles were submitted for consideration in the four rulings under review. Seven of those styles are currently under review.
The first style, submitted for consideration in New York Ruling (NY) K82771, is a belt constructed of brass with five charms together spelling “Juicy” hanging from the chain of the belt. Each charm is constructed of brass with numerous small glass stones on the front. At the point of closure, there is also a heart-shaped charm bearing the phrase ”Juicy Couture” and a separate charm in the shape of the letter “J,” both also constructed of brass. The belt is secured by an adjustable bar and ring closure. The belt is imported with a pouch constructed of an unlined lightweight cotton fabric with an elastic man-made fiber drawstring. The pouch is considered ordinary packing when imported together with the belt and is therefore not separately classifiable.
Five styles, BTRU1238, BTRU1292, BTRU1130, BTRU1267, and WXRUW119, were submitted for consideration in NY K86935. Only four of these samples, BTRU1238, BTRU1292, BTRU1130 and BTRU1267 are currently under review.
Style BTRU1238 is a belt consisting of numerous plastic pearl-like beads, and a textile tie of 75% rayon and 25% nylon that allows the belt to be tied around the waist. The textile tie is attached to the beads by metal rings, and the beads are held together by a textile material.
Style BTRU1292 is a belt consisting of numerous plastic pearl-like beads, held together by minor steel fittings. The item also features a steel drop chain and a buckle composed of 60% tin, 35% plastic and 5% glass.
Style BTRU1130 is a belt consisting of a 75% brass and 25% steel chain and a 7-inch drop, and a 100% polyester ribbon running through the chain. The end of the drop features an additional 1-inch piece of ribbon.
Style BTRU1267 is a belt consisting of a 100% steel chain with a 100% polyester fabric tie attached to steel rings located at the end of the chain. There is also a piece of 100% polyester fabric that runs through the steel chain.
One sample was submitted for consideration in NY K86961. The sample, a woman’s PVC/Metal “Flower Belt,” style number BTRU1183, consists of an iron link chain with a PVC lacing and a detachable artificial flower made of PVC.
One sample was submitted for consideration in NY K87657. The sample, referred to as PVC/Metal “Flower Belt” Style BTR1192/BTRU1183 (Revised) is a women’s belt which consists of a chain made of iron links with a PVC lacing. The front of the belt is characterized by a large, permanently attached, flower constructed of the same PVC material.
ISSUE:
What is the proper classification, under the HTSUS, for the subject fashion belts?
LAW AND ANALYSIS:
Classification under the 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. The HTSUS provisions under consideration are as follows:
3926 Other articles of plastics and articles of other materials of headings 3901 to 3914:
* * *
3926.20 Articles of apparel and clothing accessories (including gloves, mittens and mitts):
* * *
Other:
* * *
3926.20.90 Other:
* * *
3926.20.90.50 Other
* * *
7117 Imitation jewelry:
Of base metal, whether or not plated with precious metal:
* * *
7117.19 Other:
* * *
Other:
* * *
7117.19.90 Other
* * *
7326 Other articles of iron or steel:
* * *
7326.90 Other:
Other:
* * *
Other:
* * *
7326.90.85 Other
7326.90.8587 Other
* * *
7419 Other articles of copper:
* * *
Other:
* * *
7419.99 Other:
* * *
Other:
* * *
7419.99.50 Other:
* * *
7419.99.5050 Other
* * *
8007.00 Other articles of tin:
* * *
8007.00.50 Other
* * *
In addition to the terms of the headings, classification of goods under the HTSUS is governed by any applicable section or chapter notes. The legal notes to Section XV provide, in pertinent part:
Section XV: Base metals and articles of base metal
1. This section does not cover:
* * *
(e) Goods of Chapter 71 (for example, precious metal alloys, base metal clad with precious metal, imitation jewelery);
* * *
The legal notes to chapter 71 state, in pertinent part:
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….
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….
* * *
The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System at the international level. While not legally binding nor 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. See T.D. 89-80.
The ENs to heading 7117, HTSUS, provide, in pertinent part:
For the purposes of this heading, the expression imitation jewellery, as defined in Note 11 to this Chapter, is restricted to small objects of personal adornment, such as those listed in paragraph (A) of the Explanatory Note to heading 71.13, e.g., rings, bracelets (other than wrist-watch bracelets), necklaces, ear-rings, cuff-links, etc….
(Emphasis in original)
* * *
Initially, we note that the subject imports are composite goods, consisting of various components, such as metal chains, glass stones, PVC flowers, textile ties, plastic beads, textile ribbon, etc. As a general rule, composite merchandise is classified according to GRI 3. According to GRI 3(b), composite goods are to be classified “as if they consisted of the material or component which gives them their essential character….” The term “essential character,” refers to “the attribute which strongly marks or serves to distinguish what an article is; that which is indispensable to the structure, core or condition of the article.” Headquarters Ruling Letter (HQ) 956538, dated November 29, 1994; See also Better Home Plastics Corp. v. United States, 20 CIT. 221; 916 F. Supp. 1265 (1996). When composite goods cannot be classified by reference to 3(b), “they shall be classified under the heading which occurs last in numerical order among those which equally merit consideration.” See GRI 3(c).
In NY K87657, CBP determined that no component imparted essential character to style BTR1192/BTRU1183. As a result, it was classified according to GRI 3(c). We disagree with this conclusion. It is now CBP’s position that all styles currently under consideration are classifiable according to GRI 3(b).
We will first consider styles BTRU1238 and BTRU1292 of NY K86935. Both of these styles are constructed primarily of pearl-like plastic beads. The other components are minor accessories. As a result, the essential character for each style is imparted by the plastic beads. BTRU1238 and BTRU1292 will therefore be classified as if they consisted only of plastic. The other five styles are composed, primarily, of metal chain belts. These metal chains feature prominently on the belt and impart essential character to each style. These belts will therefore be classified as if they consisted only of metal.
At issue is whether these seven belts are identifiable as imitation jewelry or as clothing accessories. In the above-mentioned rulings, we determined that the belts were identifiable as imitation jewelry. We now find that conclusion to be in error.
Each of the subject belts were originally classified under heading 7117, HTSUS, as “articles of imitation jewelry.” The term “imitation jewelry” applies only to “small objects of personal adornment.” See chapter 71, note 9(a). These objects include, but are not limited to, “rings, bracelets, necklaces, brooches, earrings, watch chains, fobs, pendants, tie pins, cuff links, dress studs, religious or other medals and insignia.” Belts are not specifically named in this list of exemplars. Classification under heading 7117, HTSUS, is therefore dependent upon the canon of construction known as ejusdem generis, which means literally, “of the same class or kind.” “Where particular words of description are followed by general terms, the latter will be regarded as referring to things of a like class with those particularly described.” Nissho-Iwai American Corp. v. United States (Nissho), 10 CIT 154, 156 (1986). “As applicable to classification cases, ejusdem generis requires that the imported merchandise possess the essential characteristics or purposes that unite the articles enumerated eo nomine in order to be classified under the general terms.” Id. at 157.
Fashion belts do not share the same essential characteristics as the listed exemplars. The named articles are all “small objects of personal adornment” which share the characteristics of being generally lightweight and comparatively small in size. Belts, on the other hand, must be large enough to encircle the wearer’s waist, a circumference which is larger than the finger, neck or wrist. Furthermore, each of the articles listed is primarily decorative. Any functional use is subsidiary to the primary purpose of adornment. While belts may be used for their functional and decorative qualities, neither use is clearly primary. By application of ejusdem generis, therefore, the subject belts are excluded from heading 7117, HTSUS.
This conclusion is consistent with CBP practice with respect to plastic and textile belts. CBP has generally excluded such items from heading 7117, HTSUS, stating that they “do not meet the definition of ‘imitation [jewelry]’ pursuant to note 8(a) nor are they similar to the cited exemplars.” HQ 956014, dated June 8, 1994. See also HQ 083703, dated September 1, 1989, (holding that textile belts with metal fashion buckles did not meet the definition of “imitation jewelry,” and therefore could not be classified under heading 7117, HTSUS). Fashion belts, regardless of the constituent material, are excluded from heading 7117, HTSUS, because they do not satisfy the definition of “imitation jewelry.”
We next consider whether the subject belts are classifiable as “clothing accessories.” The term “accessory” is not defined in the Harmonized Tariff Schedule or the ENs. When a tariff term is not defined in either the HTSUSA or its legislative history, the term's correct meaning is presumed to be its common meaning in the absence of evidence to the contrary. See Rohm & Haas Co. v. United States, 727 F.2d 1095 (CAFC 1984). In HQ 966506, dated August 26, 2003, CBP adopted a definition of the key term “accessory:”
Webster's Third New International Dictionary, Unabridged (1986), defines accessory as "an object or device that is not essential in itself but that adds to the beauty, convenience, or effectiveness of something else . . . . any of various articles of apparel…that accent or otherwise complete one's costume."…There is no requirement that accessories exhibit a reliance or dependence on the primary article(s). Accessories must be related to, or exhibit some connection to the primary article, and must be intended for use solely or principally as an accessory. For example belts used as clothing accessories need not rely or depend on a particular article of clothing. Fashionable belt accessories…are often used for adornment or to compliment [sic.] clothing. (Emphasis added)
The subject articles satisfy the definition of “accessory.” The subject belts are not essential, but they add to the beauty of the wearer’s clothing. These belts “accent or otherwise complete one’s costume.”
We recognize that there has been some inconsistency in the classification of fashion belts. While textile or plastic belts are uniformly classified as clothing accessories, metal belts have been classified as both clothing accessories and imitation jewelry. See NY L88204, dated November 17, 2005 (classification of plastic belts under heading 3926, HTSUS, which provides for “…articles of apparel and clothing accessories”); NY I81111, dated April 29, 2002 (classification of a woven textile belt under heading 6217, HTSUS, which provides for “other made up clothing accessories”); NY 875846, dated July 22, 1992 (classification of an aluminum chain belt under heading 7616 as “other articles of aluminum”); and NY L88846, dated November 18, 2005 (classification of a metal chain belt under heading 7117, HTSUS, as imitation jewelry). It is CBP’s position that belts are classifiable as clothing accessories regardless of the component materials. We note that the HTSUS does not specifically provide a provision for clothing accessories of metal. Metal clothing accessories are therefore classified according to their constituent material.
HOLDING:
By application of GRI 1 and GRI 3(b), the metal chain belt of NY K82771 and style number BTRU1130 of ruling NY K86935 are classifiable under heading 7419, HTSUS. Specifically, they are classifiable under subheading 7419.99.5050, HTSUSA, which provides for “Other articles of copper: Other: Other: Other: Other: Other.” The 2008 general, column one rate of duty is free.
By application of GRI 1 and GRI 3(b), Styles BTRU1238 and BTRU1292 are classifiable under heading 3926, HTSUS. Specifically, they are classifiable under subheading 3926.20.9050, HTSUSA, which provides for “Other articles of plastics and articles of other materials of headings 3901 to 3914: Articles of apparel and clothing accessories (including gloves, mittens and mitts): Other: Other: Other.” The 2008 general, column one rate of duty is 5 percent ad valorem.
By application of GRI 1 and GRI 3(b), Style BTRU1267, the Flower Style Belt of ruling NY K86935, style number BTR1192/BTRU1183 (revised) of NY K87657, and style number BTRU1183 of NY K86961, are classifiable under heading 7326, HTSUS. Specifically, they are classifiable under subheading 7326.90.8587, HTSUSA, which provides for “[o]ther articles of iron or steel: Other: Other: Other: Other….Other.” The 2008 general, column one rate of duty is 2.9 percent ad valorem.
Duty rates are provided for convenience only 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 K82771, dated February 6, 2004, NY K86961, dated June 22, 2004, and K87657, dated July 19, 2004, are hereby revoked. NY K86935, dated June 21, 2004, is hereby modified. In accordance with 19 USC §1625(c), this ruling will become effective 60 days after publication in the Customs Bulletin.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division