HQ 957071: PRD 2809-94-100612; Gold necklaces; Gold earrings; timelyprotest; 19 U.S.C. 1514(c)(2); 19 CFR 174.12(e); 90 days; GRI 1,2(b), 3(a),3(b); EN Rule 3(b)(X)

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                            HQ 957071

                                        January 25, 1995
                                 
CLA-2 CO:R:C:M 957071 MMC

CATEGORY:  Classification

TARIFF NO.: 7113.19.29; 7113.19.50

District Director
U.S. Customs Service 
555 Battery Street
San Francisco, CA 94111

RE: PRD 2809-94-100612; Gold necklaces; Gold earrings; timely
protest; 19 U.S.C. 1514(c)(2); 19 CFR 174.12(e); 90 days; GRI 1,
2(b), 3(a),3(b); EN Rule 3(b)(X)

Dear District Director:

     The following is our decision regarding Protest 2809-94-100612 concerning your action in classifying and assessing duty
on gold necklaces and gold earrings under the Harmonized Tariff
Schedule of the United States (HTSUS).  Protestant has provided
packaging samples, dealer letters, pictures of the jewelry on
display, as well as a felt board for our review.

FACTS:

     The subject articles are described as various pieces of 24
carat handcrafted gold necklaces and earrings.  According to
protestant, the motifs of individual necklaces match the motif of
individual pairs of earrings, thus creating sets of jewelry. 

     According to Customs inspectors, the earrings and necklaces
were imported "just all mixed together in one box".  An
importer's premises visitor report indicated that protestant
"showed us examples of the necklace sets which were allegedly in
the identical condition in which they were imported.  The "sets"
consisted of gold necklaces and matching gold earrings with
simulated colored stones, each wrapped in cotton packing material
covered with tissue paper.  The jewelry we examined was packaged
differently than the parcels which Customs inspectors viewed on
prior shipments."  

     Pictures, samples and dealer letters indicate that one pair
of earrings and one necklace are displayed together on a felt
board.  Additionally, dealer letters indicate that the necklaces
and earrings are sold together.

     All of the jewelry was entered under subheading 7113.19.29,
HTSUS, which provides for necklaces of precious metal because the
importer believed the necklaces and earrings met the tariff
requirements for sets put up for retail sale. However, the
necklaces were classified upon liquidation under subheading
7113.19.29, HTSUS, as necklaces and the earrings were classified
under subheading 7112.19.50, HTSUS, which provides for other
articles of jewelry made of precious metal.  A protest was timely
filed on May 9, 1994, for all but one of the subject entries.  

     Protests against decisions of the appropriate Customs
officers must be in conformity with applicable statutory and
regulatory requirements.  The statute, 19 U.S.C. 1514(c)(2)
provides, in pertinent part, that a protest shall be filed
"within ninety days after but not before notice of liquidation...
(emphasis added)."  The time period for filing a protest is
clearly stated in section 174.12(e), Customs Regulations (19 CFR
174.12(e)), which reads, in pertinent part, as follows:

     (e)  Time of filing.  

     Protests shall be filed, in accordance with section 514,
     Tariff Act of 1930, as amended (19 U.S.C. 1514), within 90
     days after either:

     (1)  The date of notice of liquidation or reliquidation in
          accordance with sections 159.9 or 159.10 of this
          chapter....
     
     Pursuant to 19 U.S.C. 1514(c)(2) and 19 CFR 174.12(e), the
following entry was not timely protested within 90 days from the
date of notice of liquidation.  

          ENTRY               LIQUIDATION

     2801-M14-0024003         12/17/93

     The above entry was not protested until May 9, 1994.  The
time period which elapsed between the date of the notice of
liquidation and the date of the filing of the protest is greater
than the 90-day period allowed for the filing of the protest. 
Therefore, as this protest for the above entry is not timely
filed, it must be denied.  

ISSUE:

     Are the necklace and earrings classifiable as a set put up
for retail sale 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.

     Heading 7113, HTSUS, provides for articles of jewelry and
parts thereof, of precious metal or of metal clad with precious
metal.  

     The subheadings under consideration are:

7113.19.29     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: necklaces and
               neck chains, of gold: other

7113.19.50     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

     GRI 6, HTSUS, provides that for legal purposes, the
classification of goods in the subheadings of a heading shall be
determined according to the terms of those subheadings and any
related subheading notes and, mutatis mutandis, to the above
rules, on the understanding that only subheadings at the same
level are comparable.  For the purposes of this rule, the
relative section, chapter and subchapter notes also apply, unless
the context otherwise requires. Inasmuch as the subject articles
may be a set, they are described in both of these subheadings,
and therefore, cannot be classified according to GRI 1.

     When goods cannot be classified by applying GRI 1, and if
the headings, subheadings and legal notes do not otherwise
require, the remaining GRI's are applied.  

     GRI 2(b) states, in pertinent part, that any reference in a
heading to a material or substance shall be taken to include a
reference to mixtures or combinations of that material or
substance with other materials or substances.  The classification
of goods consisting of more than one material or substance shall
be according to the principles of GRI 3.

     GRI 3 states that when, by application of rule 2(b) or for
any other reason, goods are, prima facie, classifiable under two
or more headings, classification shall be effected as follows:

     (a)  The heading which provides the most specific
     description shall be preferred to headings providing a more
     general description.  However, when two or more headings
     each refer to part only of the materials or substances
     contained in mixed or composite goods or to part only of the
     items in a set put up for retail sale, those headings are to
     be regarded as equally specific in relation to those goods,
     even if one of them gives a more complete or precise
     description of the goods.  

Because each of these subheadings refers to only part of the
items in a possible set put up for retail sale, the subheadings
are considered equally specific and GRI 3(b) must be applied.  

     GRI 3(b), HTSUS, provides:

     Mixtures, composite goods consisting of different materials
     or made up of different components, and goods put up in sets
     for retail sale, which cannot be classified by reference to
     3(a), shall be classified as if they consisted of the
     material or component which gives them their essential
     character, insofar as this criterion is applicable.

     To determine what is a "set put up for retail sale" the
Explanatory Notes (ENs) of the Harmonized Commodity Description
and Coding System (HCDCS) may be utilized.  EN Rule 3(b)(X) (pg.
4), provides a three-part test for "goods put up in sets for
retail sale":
     
     For the purposes of this Rule, the term 'goods put up in
     sets for retail sale' shall be taken to mean goods which:

     (a)  consist of at least two different articles which are
          prima facia, 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 repackaging (e.g., in boxes or cases or
          on boards).

The ENs, although not dispositive, are to be looked to for the
proper interpretation of the HTSUS.  See, T.D. 89-80, 54 Fed.
Reg. 35127, 35128 (Aug. 23, 1989).

     The subject merchandise consists of two different articles,
a necklace and a pair of earrings, which are classified under
different subheadings.  Protestant has not provided evidence that
persuades us that the necklaces and earrings are, at the time of
importation, sets put up for retail sale. 

     Protestant provided no independent evidence that the box
displayed during the importer premises visit was in its original
condition as imported, or that the Customs inspector's assertion
that the jewelry was "all mixed together in a box" was incorrect. 
Additionally, none of the dealer letters indicate how the jewelry
is packaged when the dealers receive it.  Moreover, the dealer's
actions of placing the articles on felt boards indicate that at
the time of importation, the articles are not suitable for sale
directly to users without repackaging.  Because neither the
Customs inspector nor protestant indicated that the articles were
imported on felt boards, the articles are considered repackaged,
and therefore, are not suitable for sale directly to users
without repackaging.  The necklaces and earrings do not qualify
as sets and are classified separately as necklaces and earrings.
 
HOLDING:

     The protest should be DENIED.  The necklaces are
classifiable under subheading 7113.19.29, HTSUS, as gold
necklaces.  The earrings are classifiable under subheading
7113.19.50, HTSUS, as other jewelry of precious metal.

     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
                              Commercial Rulings Division