CLA-2 OT:RR:CTF:TCM H066459 TNA
Port Director, Boston Service Port
U.S. Customs and Border Protection
10 Causeway Street - Room 603 Boston, MA 02222
Re: Application for Further Review of Protest No: 0401-09-100075; Earwires and leverbacks from China
Dear Port Director:
The following is our decision regarding the Application for Further Review (“AFR”) of Protest No. 0401-09-100075, timely filed on May 4, 2009, on behalf of Dama Jewelry. The AFR concerns the classification of earwires and leverbacks under the Harmonized Tariff Schedule of the United States (HTSUS).
FACTS:
The merchandise consists of two brass articles: the earwire,
#WE-WFH13B, and the leverback, #LB85R-BR. The earwire consists of bent brass wire in the shape of a hook with a closed circle at one end. It also has a brass ball soldered to the end of the wire just before the closed circle. The leverback consists of two pieces of brass wire connected in the middle. When closed, it forms a circle; when opened, it forms a curved semicircle. A sample of both the earwire and the leverbacks have been received and examined by this office.
The merchandise was entered in six different entries on February 29, 2008, March 7, 2008, May 22, 2008, May 27, 2008, September 22, 2008, and February 4, 2009. CBP liquidated the entries between February 20, 2009 and April 3, 2009. All six entries entered under subheading 7419.99.50, HTSUS and were liquidated under subheading 7117.19.90, HTSUS. The importer filed its protest on May 4, 2009, claiming that the correct classification for the earwire is under subheading 7419.99.50, HTSUS, which provides for “other articles of copper: other: other: other.” The protest further claimed classification of the leverback in subheading 8308.90.90, HTSUS, which provides for clasps, hooks, eyes, eyelets and the like and parts thereof, of base metal, other.
ISSUES:
Whether earwires of bent brass wire should be classified under in subheading 7117.19.90, HTSUS, as imitation jewelry of base metal, or under subheading 7419.99.50, HTSUS, as other articles of copper?
Whether leverbacks made of brass wire should be classified under in subheading 7117.19.90, HTSUS, as imitation jewelry of base metal, or under subheading 8308.90.90, HTSUS, as clasps of base metal?
LAW AND ANALYSIS:
The protest was properly filed under 19 U.S.C. §1514(a)(2) as a decision on classification. The protest was timely filed, within 180 days of liquidation for entries made on or after December 18, 2004. (Miscellaneous Trade and Technical Corrections Act of 2004, Pub.L. 108-429, § 2103(2)(B)(ii), (iii) (codified as amended at 19 U.S.C. § 1514(c)(3) (2006)).
Further Review of Protest No. 0401-09-100075 is properly accorded to Protestant pursuant to 19 C.F.R. § 174.24(b) because the decision against which the protest is filed is alleged to involve questions of law or fact which have not been ruled upon by the Commissioner of Customs or his designee or by the Customs courts. Specifically, the Protestant states that the subject merchandise was liquidated in accordance with HQ 967264, dated January 26, 2005, but that the merchandise at issue is distinguishable from the merchandise in HQ 967264.
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. The GRIs and the Additional U.S. Rules of Interpretation are part of the HTSUS and are to be considered statutory provisions of law for all purposes.
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 GRIs 1 through 5.
GRI 2(a) states, in pertinent part, the following:
Any reference in a heading to an article shall be taken to include a reference to that article incomplete or unfinished, provided that, as presented, the incomplete or unfinished article has the essential character of the complete or finished article. It shall also be taken to include a reference to that article complete or finished (or falling to be classified as complete by virtue of this rule), presented unassembled or disassembled.
The HTSUS headings under consideration are the following:
7117 Imitation jewelry:
Of base metal, whether or not plated with precious metal:
7117.19 Other:
Other:
7117.19.90 Other…
* * * * * * * * * * * *
7419 Other articles of copper:
Other:
7419.99 Other:
Other:
7419.99.50 Other…
* * * * * * * * * * * *
8308 Clasps, frames with clasps, buckles, buckle clasps, hooks, eyes, eyelets and the like and parts thereof, of base metal, of a kind used for clothing, footwear, awnings, handbags, travel goods or other made up articles; tubular or bifurcated rivets of base metal; beads and spangles of base metal:
8308.90 Other, including parts:
8308.90.90 Other
In understanding the language of the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System, which constitute the official interpretation of the HTSUS at the international level, may be utilized. The ENs, although not dispositive or legally binding, provide a commentary on the scope of each heading, and are generally indicative of the proper interpretation of the HTSUS. See T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989).
The EN for heading 7117, HTSUS, states, in pertinent part, the following:
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., but not including buttons and other articles of heading 96.06, or dress combs, hair-slides or the like, and hair-pins of heading 96.15, provided they do not incorporate precious metal or metal clad with precious metal (except as plating or as minor constituents as defined in Note 2 (A) to this Chapter, e.g., monograms, ferrules and rims) nor natural or cultured pearls, precious or semi-precious stones (natural, synthetic or reconstructed).
The heading also covers unfinished or incomplete articles of imitation jewellery (ear-rings, bracelets, necklaces, etc.), such as :
(a) Semi-finished split rings, consisting of anodised aluminium wire, usually twisted or surface worked, whether or not fitted with a crude clasp, sometimes used as ear-rings without further working;
(b) Ornamental motifs of base metal, whether or not polished, assembled by small links into strips of indefinite length.
The heading also excludes:…
(b) Articles of heading 83.08 (buckles, buckle-clasps, clasps, hooks, eyelets, etc.).
The EN for heading 7419, HTSUS, states, in pertinent part, the following:
This heading covers all articles of copper other than those covered by the preceding headings of this Chapter or by Note 1 to Section XV, or articles specified or included in Chapter 82 or 83, or more specifically covered elsewhere in the Nomenclature.
This heading covers, in particular:…
(4) Chain and parts thereof, of copper (see the Explanatory Note to heading 73.15), excluding chains having the character of imitation jewellery (e.g., watch chains and trinket chains) (heading 71.17).
The EN for heading 8308, HTSUS, states, in pertinent part, the following:
This heading includes :
(A) Hooks, eyes and eyelets, for clothing, footwear, awnings, tents or sails….
(C) Clasps, fasteners, and frames with clasps, for handbags, purses, brief cases, executive cases or other travel goods, or for books or wrist watches; but the heading excludes locks (including locking clasps), and frames with clasps, incorporating locks (heading 83.01).
In HQ 967264, CBP classified hook ear wires. There, the merchandise at issue was a surgical steel fish hook wire used to make earrings for imitation or costume jewelry. The wire was bent in the shape of a hook with a closed circle at one end and contained a stainless steel ball soldered to the end of the wire just before the closed circle. The protestant claimed classification as “other articles of steel” because they were steel wire used to make earrings. CBP disagreed and classified the items under subheading 7117.19.90, HTSUS, stating that the merchandise was “bent into a shape for use as earrings. While different bangles could be attached to the circle at one end of the wire, that end already has a decorative steel ball soldered there and can be used as an earring by itself.” HQ 967264 added that “even if the protestant intends to add some kind of bangle to the instant fish hook ear wires the article is substantially completed and has the essential character of an earring.” Thus, CBP found that the merchandise met the definition of jewelry under the terms of the heading and the EN thereto. Using GRI 2(a), CBP classified the merchandise in heading 7117, HTSUS.
In the present case, protestant claims classification of its earwire in heading 7419, HTSUS, as “other items of brass.” CBP has both examined the submitted samples of the subject merchandise and compared them to samples we received for HQ 967264. The merchandise in the instant case is substantially similar to that discussed in HQ 967264. The subject merchandise is made of brass and the merchandise in HQ 967264 was made of steel, but they are both bent into the shape of an earring and contain a closed circle at one end and a stainless steel ball soldered to the end of the wire just before the closed circle. In addition, in the present case, even if protestant intends to add baubles to the earwires, the merchandise could still be worn as earrings in its current form. As a result, CBP finds that the subject merchandise meets the definition of jewelry found in the EN to heading 7117, HTSUS, and, under GRI 2(a), classifies the subject merchandise under heading 7117, HTSUS. More specifically, it is classified under subheading 7117.19.90, as imitation jewelry of base metal. As such, the rate of duty is 11% ad valorem.
Protestant argues for classification of the leverback in heading 8308, HTSUS, because this heading covers clasps, eo nomine. Part (C) of the EN to heading 8308, HTSUS, clarifies that the heading covers clasps “for handbags, purses, brief cases, executive cases or other travel goods, or for books or wrist watches.” In HQ 966173, dated March 27, 2003, we classified a plastic clip in heading 3126, HTSUS, as an article of plastic. In rejecting classification in heading 8308, HTSUS, we stated that EN 83.08(C):
describes clasps of base metal used to securely close or join the sides or ends of a good together (e.g., briefcase). Thus the sides of a briefcase, which when left open, leave the briefcase’s interior and contents exposed, are held securely closed by the interconnecting parts of a metal clasp mounted at the corresponding points on each side of the case. Unlike the goods described in the heading and EN 83.08(C) the subject plastic clip is not designed to secure a good closed, or secure its contents. The subject clip is designed to be attached to light correspondence or small pieces of notepaper to organize them. The metal spring improves the clip’s capacity to remain in place once it is attached to the article it is intended to highlight. Thus, although this clip has a metal spring, its function does not make the subject good a clasp of base metal described in heading 8308, HTSUS.
In the present case, the subject merchandise can be distinguished from clasps of the kind described by heading 8308, HTSUS, because it does not serve to hold two parts of something together, the way a briefcase clasp holds the two sides of the case together. Rather, it serves to clip through ear and cartilage. As such, it is not described by the terms of heading 8308, HTSUS.
The subject leverbacks, much like the subject earwires, could still be worn as earrings in their current form. In the language of HQ 967264, “even if the protestant intends to add some kind of bangle to the instant [merchandise], the article is substantially completed and has the essential character of an earring.” As a result, CBP finds that the subject leverbacks also meet the definition of jewelry found in the EN to heading 7117, HTSUS, and, under GRI 2(a), classifies the subject merchandise under heading 7117, HTSUS. More specifically, it is classified under subheading 7117.19.90, as imitation jewelry of base metal.
HOLDING:
By application of GRI 2(a), the earwires and the leverbacks are classified in heading 7117, HTSUS, specifically under subheading 7117.19.90, HTSUS, which provides for: imitation jewelry of base metal. The general column one rate of duty is 11% ad valorem.
You are instructed to DENY the protest.
In accordance with Sections IV and VI of the CBP Protest/Petition Processing Handbook (HB 3500-08A, December 2007, pp. 24 and 26), you are to mail this decision, together with the CBP Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing the decision.
Sixty days from the date of the decision, the Office International Trade, Regulations and Rulings, will make the decision available to CBP personnel, and to the public on the CBP Home Page on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division