HQ 0733603 - Classification and country of origin marking of imitation jewelry and hair barrette; Earrings. - United States International Trade Commision Rulings

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HQ 733603

October 15, 1991

MAR 2-05 CO:R:C:V 733603 NL

CATEGORY: MARKING CLASSIFICATION

TARIFF NOS.: 7117.19.50; 9615.19.60.

William J. LeClair
Administrative and Regulatory Advisor
Trans-Border Customs Services, Inc.
P.O. Box 800
Champlain, New York 12919

RE: Classification and country of origin marking of imitation jewelry and hair barrette; Earrings.

Dear Mr. LeClair:

This is in reply to your letter dated June 18, 1990, in which you request a ruling on the classification and country of origin marking of three items of costume jewelry, and your follow-up inquiry dated October 17, 1990.

FACTS:

We have examined the submitted samples, which consist of a pair of earrings and two barrettes.

The earrings are of base metal. They are attached by their clips to a plastic retail display card suitable for hanging on a rack. On the back of the plastic display card is a gummed label which reads, "MADE IN CANADA FABRIQUE AU CANADA". The earrings themselves are not in any manner marked with their country of origin. You state that the earrings are made in Canada.

The barrette is of base metal. It is attached by its clip to a plastic retail display card suitable for hanging on a bar. Hanging from the clip of the barrette is a stringed hang-tag, printed on the front with "BEVERLY HAMBURG"; on the back of the hang-tag is a gummed label reading "MADE IN CANADA FABRIQUE AU CANADA". The clip of the barrette is etched with the words, "MADE IN FRANCE". You state that the decorative portion of the barrette is made in Canada, and that the French-made clip is attached in Canada.

The second barrette consists of a base metal clip and a fabric bow. The bow itself bears no country of origin marking, but sewn into it is a fabric label identifying the designer. The clip is marked "MADE IN FRANCE". You state that the bows are made in Canada of fabric that is not always of Canadian origin and there attached to the French-made clips. For purposes of this ruling we assume that the fabric is entirely cut and sewn in Canada to form a bow.

ISSUES:

Under what subheadings of the Harmonized Tariff Schedule of the U.S. (HTSUS) are the articles to be classified? What is the country of origin of the respective articles? By what method must they be marked?

LAW AND ANALYSIS:

CLASSIFICATION

The classification of merchandise under the HTSUSA is governed by the General Rules of Interpretation (GRI's). GRI 1, HTSUSA, 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...."

The earrings of base metal are classified under subheading 7117.19.50, HTSUSA, which provides for "Imitation jewelry...Of base metal, whether or not plated with precious metal...Other...Other..." This provision is dutiable at the rate of 11% ad valorem. A pair of earrings has been held to constitute two pieces under this tariff provision. See, Headquarters Ruling Letter (HRL) 023470 dated October 25, 1972.

The barrettes which consist of a fabric bow or a base metal knot attached to a base metal clip are classified under subheading 9615.19.60, HTSUSA, which provides for "Combs, hair- slides and the like; hairpins, curling pins curling grips, hair- curlers and the like; other than those of heading 8516, and parts thereof...Combs, hair-slides and the like...Other... Other." The barrettes are dutiable at the rate of 11% ad valorem.

Additionally, the earrings of subheading 7117.19.50, HTSUSA, and the barrettes of subheading 9615.19.60, HTSUSA, are both tariff provisions eligible for preferential treatment under the United States-Canada Free Trade Agreement ("CFTA"). To be eligible for tariff preferences under the CFTA, goods must be "originating goods" within the rule of origin in General Note 3(c)(vii)(B), HTSUSA. There are two primary means in General Note 3(c)(vii)(B), HTSUSA, by which articles imported into the U.S. may be "goods originating in the territory of Canada." The first method is if the goods are "wholly obtained or produced in the territory of Canada and/or the United States." General Note 3(c)(vii)(B)(1), HTSUSA. The second method is if the goods are "transformed in the territory of Canada and/or the United States." General Note 3(c)(vii)(B)(2), HTSUSA.

A product which is "wholly obtained or produced in the territory of Canada and/or United States" is one which is grown, mined, harvested, born and raised in Canada and/or the United States, or otherwise intimately connected to the two countries and their land, air and sea territories as defined in General Note 3(c)(vii)(L), HTSUSA. You state that the earrings are manufactured in Canada. If the earrings meet the definitions and requirements of General Note 3(c)(vii)(B)(1), and General Note 3(c)(vii)(L), HTSUSA, then they are considered to be goods originating in Canada, and are entitled to the CFTA tariff preference.

The barrettes include base metal clips which are articles from a third country, France. The barrettes do not meet the definitions found within General Note 3(c)(vii)(L), HTSUSA, and are not "wholly obtained or produced in the territory of Canada and/or the United States" under General Note 3(c)(vii)(B)(1), HTSUSA.

The second method to satisfy the origin requirement for CFTA purposes is for an article made of foreign materials to be transformed in Canada and/or the United States in accordance with General Note 3(c)(vii)(B)(2), HTSUSA. A transformation is evident when a change in tariff classification occurs that is authorized by General Note 3(c)(vii)(R), HTSUSA. General Note 3(c)(vii)(R)(20), HTSUSA, states what transformation is necessary to Chapter 96, HTSUSA. This office does not have sufficient information to make this determination. Should the barrettes meet the requirements of General Note 3(c)(vii)(R)(20), HTSUSA, and any other of the applicable requirements of General Note 3(c)(vii), HTSUSA, they will be considered originating goods under General Note 3(c)(vii)(B), HTSUSA, and are entitled to the tariff preference under the CFTA.

COUNTRY OF ORIGIN

Section 304 of the Tariff Act of 1930, as amended (19 U.S.C. 1304), provides that every article of foreign origin (or its container) imported into the U.S. shall be marked in a con- spicuous place as legibly, indelibly and permanently as the na- ture of the article (or 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.

Part 134, Customs Regulations (19 CFR Part 134), implements the country of origin marking requirements and exceptions of 19 U.S.C. 1304. It is generally provided that the country of origin is the country of manufacture, production, or growth of any article of foreign origin entering the U.S. 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" of the article. See, 19 CFR 134.1(b).

The earrings are manufactured in Canada; therefore, in accordance with 19 CFR 134.1(b), the country of origin of the earrings is Canada.

Because the barrettes are manufactured in more than one country, their country of origin must be determined in accordance with the principle of substantial transformation. Here, it must be determined whether the clips which originate in France lose their identities as separate articles upon being combined with the decorative bows to produce the finished barrettes in Canada. Customs has generally considered six factors in determining whether or not an article loses its separate identity as a result of the manufacturing process:

1) whether the article is completely finished;

2) the extent of the manufacturing process of combining the article with its counterparts as compared with the manufacturing of the subject article;

3) whether the article is permanently attached to its counterparts;

4) the overall importance of the article to the finished product;

5) whether the article is functionally necessary to the operation of the finished article, or whether it is an accessory which retains its independent function; and,

6) whether the article remains visible after the combining.

These factors are not exclusive and there may be other factors relevant to a particular case and no one factor is determinative. See HQ 728801 (February 26, 1986) and HQ 732940 (July 5, 1990).

In this case we find that the manufacturing process in Canada, wherein the Canadian-made bow is combined with the French-made clip, is a substantial transformation of the clip resulting in a new and different article of commerce, namely, a fashion barrette. The country of origin of the barrette is, therefore, Canada. We base this conclusion on the following findings of fact: the clip is permanently attached to the bow; the clip, although an essential component of the barrette, is secondary in importance to the bow which makes the article a fashion barrette; the clip is functionally necessary to the operation of the barrette; and, the clip, although visible after the combining, is invisible when the barrette is put to the use for which it is made.

METHOD OF MARKING

With certain exceptions not applicable here, Customs permits any method of marking which is sufficiently permanent to insure that, in any reasonably foreseeable circumstance, the marking shall remain on the article until it reaches the ultimate purchaser unless it is deliberately removed (19 CFR 134.41(b)). The use of paper sticker labels and tags is acceptable so long as this standard is met (19 CFR 134.44). Customs finds that the country of origin of the barettes and earrings may be indicated by the use of hang tags or gummed labels permanently affixed to the retail display cards to which the articles are attached.

However, because the country of origin of the fashion barrettes is Canada, the "Made in France" marking on the clips is misleading to the ultimate purchaser in the U.S. In order to comply with the requirements of 19 U.S.C. 1304 and Part 134, Customs Regulations, this marking must be either removed (a procedure which appears to present practical difficulties), or remedied by the inclusion of the phrase, "Clip made in France" on the hang tag or display card next to the marking "Made in Canada".

HOLDING:

The earrings of base metal are classified under subheading 7117.19.50, HTSUSA, which provides for "Imitation jewelry...Of base metal, whether or not plated with precious metal...Other...Other..." If the earrings are goods "wholly obtained or produced in the territory of Canada" pursuant to General Note 3(c)(vii)(B)(1), HTSUSA, then they will be eligible for the tariff preferences under the CFTA.

The barrettes are classified under subheading 9615.19.60, HTSUSA, which provides for "Combs, hair-slides and the like; hairpins, curling pins curling grips, hair-curlers and the like; other than those of heading 8516, and parts thereof...Combs, hair-slides and the like...Other...Other." If the barrettes meet the requirements of General Note 3(c)(vii)(R)(20), HTSUSA, and any other applicable requirements of General Note 3(c)(vii), HTSUSA, they will be considered originating goods under General Note 3(c)(vii)(B)(2), HTSUSA, and will be eligible for the tariff preferences under the CFTA.

The country of origin of the articles is Canada, which may be indicated by the use of hang tags or gummed labels permanently affixed to the retail display cards of the articles. For the barrettes, such labels must also indicate that the clips, and not the finished barrettes, are made in France.

Sincerely,

John Durant
Director, Commercial

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See also:

Tariff No.: 9615.19.60 - Hair-slides and the like, not of hard rubber or plastics