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HQ W968398

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May 29, 2007

CLA-2 OT: RR: CTF: TCM W968398 ADK

CATEGORY: CLASSIFICATION

TARIFF NO.: 7326.90.8587

Port Director
United States Customs and Border Protection Port of San Francisco
555 Battery Street
San Francisco, CA 94111

RE: AFR of Protest No. 2809-06-100457; Metal and rhinestone chain belts.

Dear Port Director:

The following is our decision regarding the Application for Further Review (“AFR”) of Protest No. 2809-06-100457, timely filed on behalf of Bebe Studio Inc. (Bebe), concerning classification of certain metal and rhinestone belts under the Harmonized Tariff Schedule of the United States (HTSUS).

FACTS:

The subject imports are fashion belts made of base metal and glass rhinestones. The belts are comprised of a metal link chain, of steel and zinc, and a rhinestone covered buckle. Attached to the chain is an adjustable hook closure which allows the belt to be tightened or loosened depending on the preference of the purchaser. The belt buckles consist of four metal letters which form the word “Bebe.” The medium/large size measures 38 inches.

The merchandise was entered on various dates in 2005 and 2006 at the Bureau of Customs and Border Protection (CBP) Port of San Francisco, and liquidated under subheading 7117.19.90, HTSUS, as “[I]mitation Jewelry: Of base metal, whether or not plated with precious metal: Other: Other: Other.” The protest was timely filed on August

14, 2006 in which Bebe asserted that the proper classification is subheading 7326.90.8587, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), as: “Other articles of iron or steel: Other: Other: Other: Other: Other.”

ISSUE:

Are the subject belts classifiable as imitation jewelry or clothing accessories?

LAW AND ANALYSIS:

Initially, we note that the matter is protestable under 19 U.S.C. § 1514(a)(2) as a decision on classification. The protest was timely filed, within 180 days of liquidation for all involved entries (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. 2809-06-100457 was properly accorded to protestant pursuant to 19 C.F.R. §174.24 (a) because the decision is alleged to be inconsistent with a ruling of the Commissioner of Customs or his designee or with a decision made at any port with respect to the same or substantially similar merchandise. In their submission, the Protestant specifically identified the decisions which are alleged to be inconsistent with the Port’s actions.

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:

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

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

This section covers Chapters 72 through 83 of the HTSUS. 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 (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).

11. For the purposes of heading 7117, the expression “imitation jewelry” means articles of jewelry within the meaning of paragraph (a) of note 9.

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 both glass rhinestones and base metal. 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.” HQ 956538, Dated November 29, 1994; See also Better Home Plastics Corp. v. United States, 20 CIT. 221; 916 F. Supp. 1265 (1996). In the instant matter, both Bebe and the CBP agree that “the essential character of the belt is the metal linked chain.” See CBP Form 19 Protest, Protest Number 2809-06-100457. The composite belts will therefore be classified as if they consisted only of base metal. At issue is whether the metal belts are identifiable as imitation jewelry or as clothing accessories.

After entry, the Port of San Francisco liquidated the subject merchandise under heading 7117, HTSUS, as 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 cannon 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 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 In this ruling, we are not considering belts used for commercial purposes, such as tool belts. See New York Ruling Letter (NY) F87573, dated June 14, 2000.. 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 uniformly excluded such items from heading 7117, HTSUS, stating that they “do not meet the definition of ‘imitation [jewelry]’ pursuant to note 8(a) Chapter 71, note 8(a) of the 1994 HTSUS corresponds to chapter 71, note 9(a) of the 2007 HTSUS. 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 apparelthat 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 accessoriesare often used for adornment or to compliment [sic.] clothing. (Emphasis added)

The subject articles satisfy the definition of “accessory.” The metal and rhinestone 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 base metal. Metal clothing accessories are therefore classified according to their constituent material. CBP intends to review all rulings concerning the classification of metal chain belts and take appropriate measures under 19 U.S.C. §1625 to reconcile any inconsistencies that may exist.

HOLDING:

By application of GRI 1 and GRI 3(b), the subject metal chain belts are classifiable under heading 7326, HTSUS. Specifically, they are classifiable under subheading 7326.90.8587, HTSUSA, which provides for: “Other articles of iron or steel: Other: Other: Other: Other: Other.” The 2005 and 2006 general, column one rate of duty was 2.9 percent ad valorem.

The protest should be ALLOWED. In accordance with the Protest/Petition Handbook (CIS HB, January 2002, pp. 18 and 21), 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 in accordance with the decision must be accomplished prior to mailing of this decision. Sixty days from the date of the decision Regulations and Rulings of the Office of International Trade 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

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See also:

• Tariff No.: 7117.19.90 - Imitation jewelry (o/than toy jewelry & rope, curb, cable, chain, etc.), of base metal (wheth. or n/plated w/prec.metal), nesoi
• Tariff No.: 7326.90.85 - Iron or steel, articles, nesoi