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HQ 961175




July 21, 1998

CLA-2 RR:CR:TE 961175 RH

CATEGORY: CLASSIFICATION

TARIFF NO.: 4202.92.9015; 4202.92.9060

Richard L. Huffman, Esq.
Baden, Kramer, Huffman & Brodsky, P.C.
20 Broad Street
New York, NY 10005

RE: Petition for Reversal of New York Ruling Letter A88268

Dear Mr. Huffman:

This is in reply to the petition you submitted on behalf of Jewelry Box Corporation of America, seeking "reversal" of New York Ruling Letter (NY) A88268, dated November 1, 1996.

When our office first received your petition we notified you by letter of March 12, 1997, that the questions raised in your ruling request were closely related to issues pending in cases before the Court of International Trade (CIT), and that we were unable to render a classification ruling revoking or modifying NY A88268, in accordance with 19 C.F.R. 177.7. We have since been advised that, although cases with similar issues are still pending in the CIT, this decision will not affect those cases, and that we can now respond to your inquiry.

FACTS:

You state that your client imports plastic jewelry boxes covered with paper or nontextile materials. The "Concord" jewelry box, style 72155, is made up of 60 percent plastic resin and is covered entirely on the exterior with a flocking of manmade textile materials. The flocking appears to have been sprayed onto the surface of the molded shell and is adhered to an adhesive base or glue.

The "Leatherette" jewelry boxes, styles K550 and K907, and the "Metropolitan" jewelry box, style 99002R, have a plastic frame and are covered with paper that is coated with a thin film of vinyl.

In NY A88268, Customs held that the Concord jewelry box was classifiable under subheading 4202.92.9015 of the 1996 Harmonized Tariff Schedule of the United States Annotated (HTSUSA) (other jewelry boxes with an outer surface of textile materials). Classification of the Leatherette and Metropolitan jewelry boxes was under subheading 4202.92.9040, of the 1996 HTSUSA (other containers with an outer surface of sheeting of plastic).

In your opinion, the vinyl film on the Leatherette and Metropolitan jewelry boxes is not a sheeting of plastic and the flocking on the Concord is not a textile. You contend that all three boxes are classifiable under subheading 4202.99.1000, HTSUSA, as plastic jewelry boxes covered mainly with paper.

ISSUE:

Are the Leatherette and Metropolitan jewelry boxes classifiable in subheading 4202.92, HTSUSA, because they are wholly or mainly covered with paper that has an outer surface of sheeting of plastic, and is the Concord jewelry box classifiable in heading 4202.92 as a jewelry box with an outer surface of textile material? If not, are all the boxes classifiable under subheading 4202.99, HTSUSA, as plastic jewelry boxes covered mainly with paper?

LAW AND ANALYSIS:

Classification of goods under the HTSUSA is governed by the General Rules of Interpretation (GRIs). GRI 1 provides that classification shall be determined according to the terms of the headings and any relative section or chapter notes, taken in their appropriate order. Jewelry boxes are specifically listed in heading 4202, which provides for:

Trunks, suitcases . . . and similar containers; traveling-bags . . . jewelry boxes . . . and similar containers, of leather or of composition leather, of sheeting of plastics, of textile materials, of vulcanized fiber or of paperboard, or wholly or mainly covered with such materials or with paper.

The Explanatory Notes (EN) to heading 4202, HTSUSA, which constitute the official interpretation of the tariff at the international level, state that articles covered by the second part of the heading must be only "of" the materials specified therein or must be "wholly or mainly covered with such materials or with paper."

The four styles of jewelry boxes at issue have a plastic frame and, therefore, meet the criteria in the Explanatory Notes for classification within heading 4202.

The next issue concerns the subheading under which to classify the jewelry boxes. At the six-digit level, the nomenclature classifies the majority of goods in Chapter 42 by the material which comprises the "outer surface." HQ 954021, dated November 1, 1993, citing HQ 087760, dated October 31, 1991, and HQ 087640, dated November 8, 1990. The term "outer surface of" is not defined in Chapter 42, nor anywhere else in the HTSUSA. In HQ 086775, dated July 9, 1990, Customs stated that the outer surface "is that which is both visible and tactile." See 954021 and the cases cited therein. "Tactile" is defined as follows: "1. Perceptible to the touch: TANGIBLE." "Tangible" is defined as follows: "1a. Discernible by the touch or capable of being touched." Webster's II New Riverside University Dictionary, (1984) at 1178 and 1182, respectively.

You contend that the flocking on the Concord is not a textile. However, you do not state what you believe the flocking to be. The Dictionary of Fiber & Textile Technology, (1989) defines flock as follows:

The material obtained by reducing textile fibers to fragments by cutting or grinding. There are two main types: precision cut flock, where all fiber lengths are approximately equal, and random cut flock, where the fibers are ground or chopped to produce a broad range of lengths.

The definition of flocking reads:

A method of cloth ornamentation in which adhesive is printed or coated on a fabric, and finely chopped fibers are applied all over by means of dusting, air-blasting, or electrostatic attraction. In flock printing, the fibers adhere only to the printed areas and are removed from the unprinted areas by mechanical action.

In HQ 086775, dated July 9, 1990, we held that three styles of jewelry boxes covered with flocked paper were classifiable in subheading 4202.92.9020, HTSUSA, as jewelry boxes, with an outer surface of textile materials. We stated that "[r]egardless of the material to which the flock may be adhered, it is the textile [flock] which forms the outer surface of the jewelry boxes.

Moreover, Headquarters Ruling Letter (HQ) 953610, dated April 30, 1993, (cited in your letter to support your claim that the jewelry boxes do not have an outer surface of sheeting of plastic) contradicts your claim that the flocking on the Concord jewelry box in the instant case is not a textile material. In that ruling, Customs classified jewelry boxes covered with flocked synthetic or nylon material under subheading 4202.92.9020, as jewelry boxes with an outer surface of textile materials of manmade fibers. Accordingly, we find that the Concord jewelry box has an outer surface of textile material.

You further contend that the vinyl film on the Leatherette and Metropolitan jewelry boxes is not a sheeting of plastic because it does not satisfy the definition in Note 10 to Chapter 39, HTSUSA (Plastics and Other Articles Thereof). You state that the plastic in question is really paper with an extremely thin vinyl coat and that it is not in the cut state but has been further worked as the covering on a plastic box. Additionally, under the principles of U.S. Note 2, Chapter 42, HTSUSA, you argue that the outside surface is mainly paper and the presence of some plastic does not require a finding that the boxes be classified under subheading 4202.92.

Note 10 to Chapter 39 states, in part:

[T]he expression "plates, sheets, film, foil and strip" applies only to plates, sheets, film, foil and strip (other than those of Chapter 54) and to blocks of regular geometric shape, whether or not printed or otherwise surface-worked, uncut or cut into rectangles (including squares) but not further worked (even if when so cut they become articles ready for use).

We disagree with you that an outer surface of "sheeting of plastic" for purposes of heading 4202 must satisfy the definition of Note 10, Chapter 39. Additional U.S. Note 2 of Chapter 42, HTSUSA, makes clear that a sheeting of plastic may be an impregnation, coating, covering or lamination. It provides:

For purposes of classifying articles under subheadings 4202.12, 4202.22, 4202.32 and 4202.92, articles of textile fabric impregnated, coated, covered or laminated with plastics (whether compact or cellular) shall be regarded as having an outer surface of textile material or of plastic sheeting, depending upon whether and the extent to which the textile constituent or the plastic constituent makes up the exterior surface of the article.

Moreover, Customs resolved the issue of what is the "outer surface of" articles made with composite materials. See HQ 954021. Specifically, we addressed whether jewelry box frames which were made of plastic or metal and were covered with paper backings to which textile materials had been applied had an outer surface of textiles or paper. In reaching our conclusion, we said that Additional U.S. Note 2 of Chapter 42 is instructive in understanding the meaning of "outer surface of" when applied to composite materials [not specifically listed in that note].

Customs application of U.S. Note 2, Chapter 42, makes it clear that a composite material that is "of" textile for classification at the heading level may, nonetheless, have an "outer surface of" plastic for classification at the subheading level. HQ 954021, citing HQ 087640, HQ 087755, HQ 087210, dated May 10, 1991. In 954021, Customs found that the absence of a note addressing paper and textile composite materials, or other composite materials (i.e., paper and plastic) did not evidence an intent to interpret the term "outer surface" differently when confronted with other component combinations. We held that the composite paper and textile flock material that covered the jewelry box was a paper for heading level classification (4202) but had an "outer surface of" textile material for subheading level classification (4202.92).

In your case, the vinyl film on the Leatherette and Metropolitan jewelry boxes coats, covers or is laminated to the paper and constitutes the exterior of the boxes. Therefore, we find that those jewelry boxes are constructed of plastic and are wholly covered with paper which has an outer surface of sheeting of plastic.

Finally, you contend that the boxes in question are not suitable for long term use but will be used only to transfer jewelry from the point of purchase to the purchaser's home. After examining the samples you sent us, we believe that the cases are sufficiently durable to last a considerable length of time and to serve a protective storage function.

The ruling you cite, HQ 954610, was issued prior to HQ 954201 and did not address the issue of "sheeting of plastic" or "outer surface of." In that ruling, the classification of the plastic jewelry box with an outer surface of a leatherette plastic coated paper under subheading 4202.99.1000, HTSUSA, was incorrect, and we are in the process of revisiting that decision.

HOLDING:

The Concord jewelry box, style 72155, is classified in subheading 4202.92.9015 of the 1998 HTSUSA, which provides for "Trunks, suitcases . . . and similar containers; traveling-bags . . . jewelry boxes . . . and similar containers, of leather or of composition leather, of sheeting of plastics, of textile materials, of vulcanized fiber or of paperboard, or wholly or mainly covered with such materials or with paper: Other: With outer surface of sheeting of plastic or of textile materials: Other: Other: With outer surface of textile materials: Other, jewelry boxes of a kind normally sold at retail with their contents.

The Metropolitan (style 99002R) and Leatherette (styles K550 and K907) jewelry boxes are classifiable under subheading 4202.92.9060 of the 1998 HTSUSA, which provides for "Trunks, suitcases . . . and similar containers; traveling-bags . . . jewelry boxes . . . and similar containers, of leather or of composition leather, of sheeting of plastics, of textile materials, of vulcanized fiber or of paperboard, or wholly or mainly covered with such materials or with paper: Other:
With outer surface of sheeting of plastic or of textile materials: Other: Other: Other: Other.

All the jewelry boxes are dutiable at the general column one rate of duty at 19 percent ad valorem.

New York A88268 is affirmed. However, the tariff numbers and duty rate have been changed to reflect the current HTSUSA.

Sincerely,

John Durant, Director
Commercial Rulings Division

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