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HQ 966822




December 29, 2003

CLA 2 RR:CR:TE 966822 KSH

CATEGORY: CLASSIFICATION

TARIFF NO.: 4202.92.9060

Mr. Rodney Ralston
UPS Supply Chain Solutions
One Trans-Border Drive
Champlain, NY 12919

RE: Reconsideration of New York Ruling Letter (NY) J87894 dated August 13, 2003, concerning the classification of a jewelry box with outer surface of plastic sheeting

Dear Mr. Ralston:

This is in reply to your letter of September 3, 2003, on behalf of Impenco of Montreal Canda, requesting reconsideration of NY J87894, dated August 13, 2003, concerning the classification of a jewelry box with outer surface of plastic sheeting imported from China.

FACTS:

The merchandise is identified as Style A09M280. It is an unfinished jewelry box that is made of polystyrene molded plastic that is wholly covered with a metalized polyester plastic film that is bonded to a paper base. The jewelry box features a hinged lid and clear plastic top for viewing or displaying jewelry. It measures approximately 3¾ inches by 3½ inches by 1½ inches. It is intended to be sold at retail containing pieces of jewelry.

In NY J87894, the jewelry box was classified in subheading 4202.92.9060, Harmonized Tariff Schedule of the United States Annotated (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."

It is your client’s view that CBP erroneously classified the item as having an outer surface of plastic sheeting in subheading 4202.92, HTSUS. Your client maintains that the outer surface of the box is a metal foil paper, however no alternative classification has been offered.

ISSUE:

Whether the outer surface of the jewelry box is of paper or of sheeting of plastic.

LAW AND ANALYSIS:

Classification of goods under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) is governed by the General Rules of Interpretation (GRIs), taken in order. GRI 1 provides that classification shall be determined according to the terms of the headings 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.

Heading 4202, 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. (Emphasis added).

The issue raised herein concerns the subheading under which to classify the jewelry box containers. At the six-digit level, the nomenclature classifies the majority of goods in Chapter 42 according to the material that comprises the "outer surface." See Headquarters Ruling Letter (HQ) 954021, dated November 1, 1993, citing HQ 087760, dated October 31, 1991, and HQ 087640, dated November 8, 1990.

Except as noted below, the term "outer surface of" is not defined in Chapter 42, nor anywhere else in the HTSUSA. In HQ 086775, dated July 9, 1990, CBP stated that the outer surface "is that which is both visible and tactile." Also see, HQ 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. Moreover, for purposes of heading 4202, CBP resolved the issue of what is the "outer surface of" articles made with composite materials. Specifically, we have addressed in a number of rulings whether jewelry box frames, which were made of plastic or metal and were covered with paper to which textile materials had been applied, had an outer surface of textiles or paper. See HQ 954021, dated November 1, 1993. In reaching our conclusion in that ruling, 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). CBP’s interpretation of the term "outer surface of" is consistent with Additional U.S. Note 2 of Chapter 42, HTSUSA, which provides that:

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.

Thus, this note explicitly provides the mechanism for making an "outer surface" determination where textile fabric has been impregnated, coated, covered or laminated with plastic. The note expresses the concept of "outer surface" by use of the term "exterior surface," and is useful in understanding the term "outer surface" when applied to other composite materials. CBP has relied upon this note as guidance when classifying other articles in heading 4202 with an outer layer made of composite materials. CBP’s application of the note is consistent with the Court of International Trade’s decision in Sarne Handbags Corp. v. United States, 100 F. Supp. 2d 1126; 2000 Ct. Int’l. Trade 51 (2000), wherein the court, applying the note, found that a handbag whose outer layer was composed of plastic-coated textile was classified as having an outer surface of sheeting of plastic.

When applying the definition of "visible and tactile" to goods of heading 4202, HTSUSA, CBP has consistently classified the goods according to the outermost substance of the composite material at issue. For instance, CBP addressed this issue as it pertained to jewelry presentation boxes that were covered with a flock-coated paper. CBP concluded, based on the fact that it was the textile flock that was visible and tactile, that the jewelry boxes had an outer surface of textile materials. See HQ 954021, supra, and HQ 961175, dated July 21, 1998. Similarly, CBP has classified jewelry boxes, a coupon holder, and a "Vanity Train Case," each covered with paper that had been coated with sheeting of plastic, as containers having an outer surface of sheeting of plastic. See HQ 960454, dated December 9, 1997 (jewelry box); HQ 961175, supra, (jewelry box); HQ 960990, dated February 3, 1998 (coupon holder); and HQ 960462, dated December 16, 1997 (Vanity Train Case). See also, HQ 086983, dated June 14, 1990 (classifying a jewelry organizer that was covered with a clear plastic-coated floral textile material as having an outer surface of sheeting of plastic).

CBP performed a laboratory analysis on the instant jewelry box. CBP laboratory report number NY20031982 dated October 3, 2003, states that the sample analyzed is a blue jewelry box. The report states that the co’ated paper is composed of two layers. The outer blue layer is composed of a metalized polyester plastic film bonded to a sheet of white paper. CBP found that the metalized polyester plastic film measures 0.025mm in thickness and the white paper sheet measures 0.125mm in thickness. The plastics component that is exposed entirely covers the paper component and is relatively thin in comparison to its breadth. Applying the principles set forth in previously cited Headquarters rulings and Sarne, we find that the outer surface of the jewelry box is "of plastic sheeting." It is classified under subheading 4202.92.9060, HTSUSA, which provides for other containers that have an outer surface of sheeting of plastic.

HOLDING:

NY J87894, dated August 13, 2003, is hereby affirmed.

The jewelry box is classified in subheading 4202.92.9060, 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." The general column one rate of duty is 17.8% ad valorem.

Sincerely,

Myles B. Harmon, Director
Commercial Rulings Division

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