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HQ 959171




September 16, 2002

CLA-2-42: RR: CR:TE 959171 JFS

CATEGORY: CLASSIFICATION

TARIFF NO.: 4202.92.9015; 4202.92.9040; 4202.92.6010; 4202.99.1000; 4202.99.5000

Port Director
U.S. Customs Service
1624 E. 7th Ave.
Suite 101
Tampa, Fl 33605

RE: Decision on Application for Further Review of Protest No. 1801-95-100002; 4202, HTSUSA; Jewelry Display Case; Treatment

Dear Madam:

This is a decision on an application for further review (AFR) of a protest timely filed on January 4, 1996, by Sandler, Travis & Rosenberg, P.A., on behalf of Bufkor, Inc. The Protest concerns the classification, treatment and liquidation of four entries of jewelry display cases, manufactured in El Salvador and entered in January, February and March, 1995.

FACTS:

You classified all of the jewelry boxes in various subheadings under heading 4202 Harmonized Tariff Schedule of the United States Annotated (HTSUSA), which provides, in part, for: Trunks. . . handbags . . . 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. You classified the jewelry boxes at the subheading level according to the material that comprised the outer surface of the boxes. You classified the jewelry boxes that had an outer surface of cotton, in subheading 4202.92.6010, HTSUSA, which, for products of El Salvador, had a special column one duty rate of 5.4 percent ad valorem. You classified the jewelry boxes that had an outer surface of man made fiber, in subheading 4202.92.9015, HTSUSA, which had a special column one duty rate of 17.3 percent ad valorem. You classified the jewelry boxes that had an outer surface of plastic sheeting, in subheading 4202.92.9040, HTSUSA, which had a special column one duty rate of 17.3 percent ad valorem. You classified the jewelry boxes that had an outer surface of paper, in subheadings 4202.99.1000, HTSUSA, or 4202.99.5000, HTSUSA, which had a special column one duty rate of Free.

The protestant claims that the goods should be classified in two separate headings depending on the materials that make up the frames of the jewelry boxes. The protestant claims that jewelry boxes with plastic frames should be classified in 3923.10, HTSUSA, which provides for: “Articles for the conveyance or packing of goods, of plastics; stoppers, lids, caps and other closures, of plastics: Boxes, cases, crates and similar articles.” The special column one rate of duty, in 1995, was Free. According to the protestant, jewelry boxes with metal frames should be classified in subheading 7310.29.0050, HTSUSA, which provides, in part, for: Tanks, casks, drums, cans, boxes and similar containers . . .: Of a capacity of less than 50 liters: Other, Other. The special column one rate of duty, in 1995, was Free.

There are no samples available. However the articles under consideration are what are known as jewelry presentation boxes. They are composed of a plastic or metal shell that is covered with plastic sheeting, cotton fabric, flocked fabric or paper. Jewelry boxes come in various sizes and shapes, depending upon the article of jewelry they are designed to hold.

The protestant makes three arguments as to why the jewelry boxes should not be classified in heading 4202, HTSUSA.

1. Customs acted contrary to the provisions of 19 U.S.C. § 1625 and failed to publish the appropriate change in treatment of protestant’s entries in the Customs Bulletin.

2. The merchandise should be classified as entered.

3. With respect to some of the jewelry boxes, Customs improperly classified the boxes as “being of man-made fiber rather than as of cotton.”

4. There exists a uniform and established practice as to the classification of the jewelry boxes under 19 U.S.C. § 1315(d).

ISSUES:

1. Are the jewelry boxes classified in heading 4202, HTSUSA?

2. Has the protestant established a treatment under 19 U.S.C. § 1625(c)(1)?

3. Should some of the jewelry boxes be classified as having an outer surface of cotton?

4. Was there a uniform and established practice of classifying jewelry boxes in headings other than 4202, HTSUSA?

LAW AND ANALYSIS:

1. Are the jewelry boxes classified in heading 4202, HTSUSA?

Classification under the HTSUSA is made in accordance with the General Rules of Interpretation (GRI). 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 GRI may then be applied.

The Harmonized Commodity Description and Coding System Explanatory Notes (EN), represent the official interpretation of the Harmonized System at the international level (for the 4 digit headings and the 6 digit subheadings) and facilitate classification under the HTSUSA by offering guidance in understanding the scope of the headings and GRI. The Explanatory Notes, although not dispositive or legally binding, provide a commentary on the scope of each heading of the HTSUSA, and are generally indicative of the proper interpretation of these headings.

Customs has, since 1993, consistently classified jewelry boxes like the ones under consideration as articles of heading 4202, HTSUSA. See Headquarters Ruling Letter (HQ) 951028, dated March 3, 1993. Moreover, Customs classification of jewelry boxes in heading 4202, HTSUSA, has been affirmed by the Court of International Trade and the Court of Appeals for the Federal Circuit. See Jewelpak Corp. v. United States, 297 F.3d 1326 (2002) (affirming Jewelpak Corp. v. United States, 131 F. Supp. 2d 100 (Ct. Int’l Trade 2001)). Accordingly, Customs classification of the jewelry boxes in heading 4202, HTSUSA, was correct.

2. Has the protestant established a treatment under 19 U.S.C. § 1625(c)(1)?

Under section 625 of the Tariff Act of 1930, as amended, 19 U.S.C. §1625 (1994), a proposed interpretive ruling or decision which would –
modify (other than to correct a clerical error) or revoke a prior interpretive ruling or decision which has been in effect for at least 60 days; or
have the effect of modifying the treatment previously accorded by the Customs Service to substantially identical transactions;
must be published in the Customs Bulletin and will become effective 60 days after the date of its publication. The protestant argues that Customs, by classifying the jewelry boxes in heading 4202, HTSUSA, modified the treatment previously accorded by Customs to the jewelry boxes and, therefore, had to publish the change in treatment.

The protestant’s argument fails. Assuming, arguendo, that there was a change of treatment in how Customs classified jewelry boxes, any change in treatment occurred prior to the entry of the instant jewelry boxes. On June 22, 1994, Customs published a notice of proposed revocation, revoking New York Ruling Letter (NY) 835631, dated January 25, 1989, which classified textile covered jewelry boxes in subheading 7310.29.0000, HTSUSA. No comments were received in response to the notice. The final notice and letter (HQ 955789) revoking NY 835631, were issued on July 25, 1994, and were subsequently published in the Customs Bulletin. The final notice advised all interested parties that Customs was revoking NY 835631 to reflect proper classification of the textile covered jewelry boxes in subheading 4202.92.9015, HTSUSA. The protestant cannot turn a blind eye to the notice of revocation on identical merchandise published in the Customs Bulletin and also claim that Customs failed to give notice of a change in treatment.

Additionally, the protestant states that, in 1989, Customs issued a “Report of Classification and Value” (Report) that agreed with its position that the jewelry boxes are classified according to their base material, not the material that comprises their outer surface. This document was not included with the protest and the protestant provided no evidence that it was aware of the Report or that it considered the Report to be a decision by Customs that it could rely upon when entering merchandise.

The claim of treatment fails.

3. Should some of the jewelry boxes be classified as having an outer surface of cotton?

Under 28 U.S.C. § 2639 (a) (1) (1994), Customs enjoys a statutory presumption of correctness. Thus an importer has the burden to prove by a preponderance of the evidence that a Customs decision was incorrect. Ford Motor Company v. United States, 157 F.3d 849, 855 (Fed. Cir. 1998). In support of its argument that some of the jewelry boxes were improperly classified by Customs as having an outer surface of man-made fibers, the protestant submitted statements giving the breakdown of the composition of the boxes. For example, one of the statements produced by Synthon Industries, Inc., dated May 5, 1995, states that the “Velour” boxes were 45.1% cotton, 27.4% acrylic and 27.5% adhesive. However, neither the protestant, nor the manufacturer explains how the boxes are manufactured. It is not clear if the acrylic is fiber flocking material that coats the cotton fabric, as is most likely the situation. Because there are no samples and no explanation of how the jewelry boxes are manufactured, there is insufficient evidence to overcome the presumption of correctness enjoyed by Customs. Accordingly, Customs original decision that the outer surface of some of the jewelry boxes is of man-made fibers is correct.

4. Was there a uniform and established practice of classifying jewelry boxes in headings other than 4202, HTSUSA?

As explained in Issue 2 above, the protestant had notice that the jewelry boxes were properly classified in heading 4202, HTSUSA, well prior to the entries of the instant jewelry boxes. Accordingly, there was no uniform and established practice of classifying jewelry boxes in heading 3923 or 7310, HTSUSA.

HOLDING:

The jewelry boxes, are classified as liquidated by Customs, in heading 4202, HTSUSA, which provides, in part, for: Trunks. . . handbags . . . 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 jewelry boxes are classified at the subheading level, in accordance with the material that comprises their outer surface. The jewelry boxes that have an outer surface of cotton are classified in subheading 4202.92.6010, HTSUSA, which had a special column one duty rate of 5.4 percent ad valorem. The jewelry boxes that have an outer surface of man made fiber, are classified in subheading 4202.92.9015, HTSUSA, which had a special column one duty rate of 17.3 percent ad valorem. The jewelry boxes that have an outer surface of plastic are classified in subheading 4202.92.9040, HTSUSA, which had a special column one duty rate of 17.3 percent ad valorem. The jewelry boxes that have an outer surface of paper are classified in subheadings 4202.99.1000, HTSUSA, or 4202.99.5000, HTSUSA, which had a special column one duty rate of Free.

The protest should be DENIED. In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, Revised Protest Directive, dated August 4, 1993, a copy of this decision attached to Customs Form 19, Notice of Action, should be provided by your office to the protestant no later than 60 days from the date of this decision. Any additional Applications for Further Review currently being held in abeyance and involving merchandise and issues similar to those of the instant case should be disposed of by your office in a manner consistent with the analysis and holding above. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing of the decision.

No later than sixty days from the date of this decision the Office of Regulations and Rulings will make this decision available to Customs personnel, and to the general public on the Customs Home Page on the World Wide Web at www.customs.gov, by means of the Freedom of Information Act and other methods of public distribution.

Sincerely,

Myles B. Harmon, Acting Director

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