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HQ 958782





June 5, 1996

CLA-2 RR:TC:MM 958782 MMC

CATEGORY: CLASSIFICATION

TARIFF NO.: 7113.19.50

Port Director
U.S. Customs Service
605 W. Fourth Avenue
Anchorage, AK 99501

RE: Protest 3195-94-100004; Gold/Pearl necklaces and bracelets; Notes 2 and 4 to Chapter 71; ENs 71.13 and 71.16

Dear Port Director:

The following is our decision regarding Protest 3195-94-100004 concerning your action in classifying and assessing duty on gold/pearl necklaces and bracelets under the Harmonized Tariff Schedule of the United States (HTSUS). Pictures of the jewelry were provided for our review.

FACTS:

The articles consist of 6 different pieces of jewelry containing pearls and gold beads. They are described on invoices as follows:

BC-3 a 7"x 3" fresh water (F.W.) pearl bracelet with 14 karat (K) gold finding.
BC-21 a 3 coil choker with 14K finding.
BC-44 an 18"x5" F.W. pearl necklace with 14K finding. BC-46 a 16"x 6" F.W. pearl necklace with 14K finding. BC-51 a 7"x6" F.W. pearl bracelet with 14K finding. BC-52 a 16"x3" F.W. pearl necklace with 14K finding.

All of the pieces contain both pearls and gold beads which are smaller than the pearls. Various patterns are created in the pieces by the number of and space between the gold beads and pearls.
BC-21 is a 3 stranded choker consisting of 3 rows of 16 pearls separated by 1 column of 3 gold beads. The pattern repeats itself 6 times to create the entire choker. BC-3 and 52 are also 3-stranded but consist of 2 strands of gold beads with 1 strand of pearls between them. BC-21 is a single strand bracelet which alternates one pearl then one gold bead. Pictures of BC-44 and 46 were not available.

All of the jewelry was entered under subheading 7113.19.50, HTSUS, which provides for other jewelry with precious metal because the importer believed that because the necklaces and bracelets contain gold beads they are classifiable as jewelry of precious metals. However, the necklaces and bracelets were classified upon liquidation on October 8, 1993, under subheading 7116.10.20, HTSUS, as pearl jewelry. A protest was timely filed on January 3, 1994. The headings under consideration are:

7113 Articles of jewelry and parts thereof, of precious metal or of metal clad with precious metal: of other precious metal, whether or not plated or clad with precious metal

7116 Articles of natural or cultured pearls, precious or semiprecious stones (natural, synthetic or reconstructed)

ISSUE:

Are the gold/pearl necklace and earrings classifiable as jewelry of precious metal or jewelry of natural or cultured pearls under the HTSUS?

LAW AND ANALYSIS:

The classification of merchandise under the HTSUS is governed by the General Rules of Interpretation (GRI's). GRI 1, HTSUS, 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. Chapter 71, HTSUS, provides for natural or cultured pearls, precious or semiprecious stones, precious metals, metal clad with precious metal, and articles thereof; imitation jewelry; coin. Notes 2 and 4 to Chapter 71, HTSUS, state, in pertinent part, that:

2. (a) Heading Nos. 71.13...does 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.

(b) Heading No. 71.16 does not cover articles containing precious metal or metal clad with precious metal (other than as minor constituents).

4. (a) The expression "precious metal" means silver, gold and platinum.

In an effort to determine if the subject jewelry is considered pearl or gold for tariff purposes, the Harmonized Commodity Description and Coding System Explanatory Notes (ENs) may be consulted. The ENs, although not dispositive nor legally binding, 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, 54 Fed. Reg. 35127, 35128, (August 23, 1989). EN 71.16, p. 963-964, states, in pertinent part, that:

This heading covers all articles (other than those excluded by Notes 2 (b) and 3 to this Chapter), wholly of natural or cultured pearls, precious or semi-precious stones, or consisting partly of natural or cultured pearls or precious or semi-precious stones, but not containing precious metals or metals clad with precious metal (except as minor constituents) (see Note 2 (b) to this Chapter).

It thus includes;

(A) Articles of personal adornment and other decorated articles (e.g., clasps and frames for handbags, etc; combs, brushes; ear-rings; cuff-links, dress-studs and the like) containing natural or cultured pearls, precious or semi-precious stones (natural, synthetic or reconstructed), set or mounted on base metal (whether or not plated with precious metal), ivory, wood, plastics, etc...

Under Note 2 (b) to this Chapter the goods of this heading may contain precious metal or metal clad with precious metal as minor constituents (e.g., a pearl necklace with a gold fastener). On the other hand the heading does not cover goods (e.g., earrings with gold clips) in which the precious metal or metal clad with precious metal amounts to more than minor constituents (heading 71.13)...

EN 71.13, p. 961 states, in pertinent part, that:

This heading covers articles of jewelry...wholly or partly of precious metal or metal clad with precious metal, that is:

(A) Small objects of personal adornment (gem-set or not) such as rings, bracelets, necklaces, brooches, ear-rings, neck chains, watch-chains and other ornamental chains; fobs, pendants, tie-pins and clips, cuff-links, dress-studs, buttons, etc.; religious or other crosses; medals and insignia; hat ornaments (pins, buckles, rings, etc.); ornaments for handbags; buckles and slides for belts, shoes, etc.; hair-slides, tiaras, dress combs and similar hair ornaments...

...To fall in this heading these articles must contain precious metal or metal clad with precious metal (including base metal inlaid with precious metal) to an extent exceeding minor constituents; (thus a cigarette case of base metal with a simple monogram of gold or silver remains classified as an article of base metal). Subject to this condition the goods may also contain pearls (natural, cultured or imitation), precious or semi-precious stones (natural, synthetic or reconstructed), imitation stones, or parts of tortoise-shell, mother of pearl, ivory, amber (natural or agglomerated), jet or coral...

Customs is of the opinion that, classification of jewelry containing precious metal or metal clad with precious metal must occur on a case-by-case basis as such classification requires determining whether a piece of jewelry contains precious metal or metal clad with precious metal to an extent exceeding minor constituents.

An examination of the pictures of the subject jewelry indicates that the jewelry contains gold beads and pearls strung together. While some pieces, most notably BC-21, have few gold beads, the gold beads nevertheless occur in regular intervals, appear to be part of the pieces' designs and create a character and nature the pieces would not have in their absence. Therefore, we find the subject pieces to contain precious metal to an extent exceeding minor constituents. Because the jewelry pieces contain precious metal to an extent exceeding minor constituents, they are classifiable under heading 7113, HTSUS, specifically, subheading 7113.19.50, HTSUS, which provides for articles of jewelry and parts thereof, of precious metal or of metal clad with precious metal: of other precious metal, whether or not plated or clad with precious metal: Other: Other.

HOLDING:

The protest should be GRANTED. The jewelry is classifiable under subheading 7113.19.50, HTSUS, with a column one duty rate of 6.1% ad valorem.

In accordance with section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, this decision should be mailed by your office to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with this decision must be accomplished prior to the mailing of the decision. Sixty days from the date of this decision, the Office of Regulations and Rulings will take steps to make the decision available to Customs personnel via the Customs Rulings Module in ACS and to the public via the Diskette Subscription Service, Freedom of Information Act and other public access channels.

Sincerely,

John Durant, Director
Tariff Classification Appeals

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