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HQ 966221




May 14, 2003

CLA-2 RR:CR:GC 966221 DBS

CATEGORY: CLASSIFICATION

TARIFF NO.: 7113.11.20, 7113.11.50

Mr. Danny Gabriel
Avon Products, Inc.
1251 Avenue of the Americas
New York, NY 10020

RE: NY I80291; articles of sterling silver jewelry

Dear Mr. Gabriel:

This is in response to your letter, dated January 22, 2003, to the Director, Customs National Commodity Specialist Division, New York, requesting the classification, under the Harmonized Tariff Schedule of the United States (HTSUS), of several articles of silver jewelry. Your letter was submitted to this office for reply.

FACTS:

The importations at issue are described as follows:

Item PP#250001 are sterling silver earrings consisting of either the “ear nut type” (with post and backing) or the “fish hook type” (hook inserted through lobe). The earrings are each valued at $2.00 per pair (2 pieces).

Item PP#250002 is a sterling silver necklace with pendant. The total value is $4.50. The pendant can be removed from the necklace. The chain is valued at $3.00 and the pendant is valued at $1.50.

Item PP#250003 is a sterling silver 3-ring set, valued at $3.00. The 3 rings are sold as a set intended to be worn on a single finger.

Item PP#250004 consists of a sterling silver necklace and ring set. The necklace is valued at $2.50 and the ring is valued at $1.50. The necklace and ring have matching designs and are packaged for retail sale.

Item PP#250005 consists of two types of sterling silver necklaces with pendant permanently attached. In one style, the left and right sides of the pendant are soldered to the chain. In the other style, the pendant is loose but blocked by ball-type stoppers at the ends of the chain. The total value of these pieces is $2.50. The chains are $2.00 and the pendants are $0.50.

ISSUES:

Whether a pendant permanently attached to a necklace constitutes one or two pieces or parts for purposes of subheading 7113.11.20, HTSUS, which provides for silver jewelry valued not over $18 per dozen pieces or parts.

Whether the necklace and ring set and the 3 ring set constitute goods put up in sets for retail sale.

What is the tariff classification of certain articles of sterling silver jewelry?

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 may then be applied.

In understanding the language of the HTSUS, the Harmonized Commodity Description and Coding System Explanatory Notes (ENs) may be utilized. ENs, though not dispositive or legally binding, provide commentary on the scope of each heading of the HTSUS, and are the official interpretation of the Harmonized System at the international level. Customs believes the ENs should always be consulted. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

The HTSUS provisions under consideration are as follows:

7113 Articles of jewelry and parts thereof, of precious metal or metal clad with precious metal:

Of precious metal whether or not plated or clad with precious metal:

7113.11 Of silver, whether or not plated or clad with other precious metal:

Other:

Valued not over $18 per dozen pieces or parts

7113.11.50 Other

Whether a particular article of jewelry may consist of more than a single object (of personal adornment) depends upon the scope of a particular term. Note 9 to Chapter 71 defines the expression “articles of jewelry” for purposes of heading 7113, HTSUS, in relevant part, as “(a) Any small objects of personal adornment (gem-set or not) (for example, rings, bracelets, necklaces, brooches, earrings, watch-chains, fobs, pendants, tie pins, cuff links, dress studs, religious or other medals and insignia).”

None of the exemplars specifically enumerated in this legal note are defined in the HTSUS. To determine the proper meaning of tariff terms as contained in the statute, the terms are "construed in accordance with their common and popular meaning, in the absence of contrary legislative intent." E.M. Chemicals v. United States, 920 F.2d 910, 913 (Fed. Cir. 1990). "To assist it in ascertaining the common meaning of a tariff term, the court may rely upon its own understanding of the terms used, and it may consult lexicographic and scientific authorities, dictionaries, and other reliable information sources." Brookside Veneers, Ltd. v. United States, 847 F.2d 786, 789, 6 Fed. Cir. (T) 121, 125 (Fed. Cir.) cert. denied, 488 U.S. 943, (1988).

We have consulted lexicographic sources to determine whether the common meaning of “necklace” encompasses the instant necklaces. “Necklace” is defined in Merriam-Webster’s Collegiate Dictionary (10th ed, 1993) as “an ornament worn around the neck.” Random House Dictionary of the English Language (unabridged ed., 1973) provides, in pertinent part, “ a piece of women’s jewelry consisting of a string of stones, beads, jewels or the like, for wearing around the neck.” Webster's Third New International Dictionary (1968) provides two relevant definitions: "1(a) (1): a string of beads or other small objects (as precious stones) that is worn about the neck as an ornament (2): a chain or band usu. of metal often specially decorated ... and worn about the neck as an ornament."

The Jewelers' Dictionary (3rd ed.) provides a definition consistent with non-specialized lexicons: “A string of jewels, beads or the like or a metal band or chain worn close around the neck or low down upon the breast. One of the most primitive of ornaments.”

While the definitions of “necklace” do not specifically include precious metal chains with pendants attached, they include more than simply chains of precious metal (i.e., beads, gems and the like). Further, the scope of the word “necklace” is limited by use, as it is intended to be worn around the neck for ornamental purposes. Thus, an article of jewelry is a necklace if it is intended to be worn around the neck for ornamental purposes.

The term “pendant” is not defined in the HTSUS either. The Jewelers' Dictionary (3rd ed.) defines “pendant” as: “a hanging ornament as an earring or the main piece in a necklace.” Other sources define “pendant” as "something suspended from something else, esp. an ornament or piece of jewelry attached to a necklace or bracelet," American Heritage Dictionary, Second College Edition (1985); “a hanging ornament or decoration usually suspended on a chain,” Random House Dictionary of the English Language (unabridged ed., 1973); and “anything that hangs or depends from something else, either for ornament or for use, as an earring or a tassel.” Funk & Wagnall’s New Standard Dictionary of the English Language (unabridged, 1937).

Definitions of “pendants” suggest that while a pendant alone is an independent piece, it is often part of another piece of jewelry, such as an earring or a necklace. As such, it contributes to the whole. Accordingly, a necklace with a pendant, worn around the neck for ornamental purposes, is within the scope of the term “necklace.” This is consistent with Customs treatment of such importations as single articles. See, e.g., PD D82695, October 14, 1998; PD F85756 April 11, 2000; NY G82500, October 3, 2000; NY H85823, December 6, 2001.

Since the definition of imitation jewelry (heading 7117, HTSUS) encompasses note 9 with certain exclusions (see Note 11, Chapter 71, HTSUS), we find rulings on imitation jewelry instructive. As with articles of jewelry made of precious metals, imitation jewelry articles comprised of necklaces with pendants also have been consistently classified as single pieces. See, e.g., NY 856669 October 4, 1990; NY 862028 April 23,1991; HQ 956001, June 20, 1994; NY G86869, February 20, 2001; NY I81089, April 26, 2002. But see HQ 956524, January 31, 1995. (Classifying a product comprised of a chain, a pendant and a doll according to GRI 3(b) because Customs determined this good was described by three headings -- the pendant was a toy of heading 9503 and not a pendant of heading 7117. That is not the case here.)

The aforementioned rulings do not distinguish between pendants that are permanently attached to a chain and pendants that are removable. Therefore, we find no reason to do so here. We conclude, based on the common meaning of the terms “necklace” and “pendant,” and on Customs longstanding classification methodology with respect to necklaces imported with pendants, that a necklace imported with a pendant of precious metal constitutes a single “piece” for purposes of determining whether or not they qualify for classification under subheading 7113.11.20, HTSUS. Thus, Item PP#250002 and Item PP#250005 are classifiable according to their total values which are in excess of the $18 per dozen cutoff. Accordingly, these articles are classified in subheading 7113.11.50, HTSUS.

We now turn to Item PP#250004, to determine whether this necklace and ring set is, according to GRI 3, “goods put up in sets for retail sale” and classifiable according to that article which imparts the essential character of the set. In this case, we must apply GRI 3 through GRI 6 because the subheadings, rather than the headings, are at issue. The criteria for “goods put up in sets for retail sale” is set forth in EN (X) to GRI 3(b), which states that the merchandise must: (a) consist of at least two different articles which are, prima facie, classifiable in different headings, (b) consist of products or articles put up together to meet a particular need or carry out a specific activity; and, (c) are put up in a manner suitable for sale directly to users without repacking

The necklace and ring set are classifiable in different provisions, as the value of the ring set is not over $18 per dozen pieces or parts, but the value of the necklace is over $18 per dozen pieces or parts. A matching necklace and ring are put up together to meet the particular need of accessorizing or providing ornamentation for a person. You state the set is packaged for retail sale. As the criteria for goods put up in sets for retail sale is satisfied, we must determine which component imparts the essential character.

EN VIII to GRI 3(b) explains that "[t]he factor which determines essential character will vary as between different kinds of goods. It may, for example, be determined by the nature of the material or component, its bulk, quantity, weight or value, or by the role of the constituent material in relation to the use of the goods." The value of the necklace is greater than the value of the ring. The necklace also would comprise the bulk of the set. Therefore, we find that the essential character is imparted by the necklace, and the set is classified in subheading 7113.11.50, HTSUS.

However, Item PP#250003, the 3-ring set, does not constitute goods put up in sets for retail sale under EN(X) to GR1 3(b), discussed above, because the rings are not individually classifiable in different provisions. The rings would be classified under subheading 7113.11.20 because the value of each ring is $1 and the value is not over $18 per dozen pieces or parts.

Likewise, the value of Item PP# 250001 is $2 per pair of earrings or $1 per piece which is not over $18 per dozen pieces or parts.

HOLDING:

Item PP#250001, and Item PP#250003 are classified in subheading 7113.11.20, HTSUS, which provided for “Articles of jewelry and parts thereof, of precious metal or metal clad with precious metal: Of precious metal whether or not plated or clad with precious metal: Of silver, whether or not plated or clad with other precious metal: Other: Valued nor over $18 per dozen pieces or parts.”

Items PP#250002, Item PP# 250004 and Item PP#250005 are classified in subheading 7113.11.50, HTSUS, which provides for “Articles of jewelry and parts thereof, of precious metal or metal clad with precious metal: Of precious metal whether or not plated or clad with precious metal: Of silver, whether or not plated or clad with other precious metal: Other.”

Sincerely,

Myles B. Harmon, Director
Commercial Rulings Division

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