CLA-2 RR:CTF:TCM W968419 ADK
Area Director,
JFK International Airport Area,
C/o Chief, Liquidation and Protest Branch
Building 77, JFK International Airport,
Jamaica, New York 11430
RE: Glass beaded cosmetics compacts; Protest No. 4701-05-100176
Dear Area Director:
The following is our decision regarding the Application for Further Review (“AFR”) of Protest No. 4701-05-100176, timely filed on behalf of Estee Lauder, Inc. (Estee Lauder) concerning classification of certain cosmetics compacts under the Harmonized Tariff Schedule of the United States (HTSUS).
FACTS:
The subject imports are brass cosmetics compacts made in China. The topside and edges of the compacts are entirely covered with red, pink and silver glass beads. In the center of the compact, the glass beads are arranged to form a heart. Surrounding this heart, the beads are agglomerated to the surface. The brass is minimally visible underneath the heart, but completely obscured by the agglomerated beads. A small, round mirror is permanently fixed to the inside of the compact. After entry, the compact is filled with pressed powder and placed in a box for retail sale.
The merchandise was liquidated under subheading 7018.90.50, HTSUS, which provides for “[g]lass beads…other than imitation jewelry…:Other: Other.” Estee Lauder argues that the compact should be classified under subheading 7419.99.1500, Harmonized Tariff Schedule United States Annotated (HTSUSA), which provides for “[o]ther articles of copper: Other: Other: Containers of a kind normally carried on the person, in the pocket or in the handbag.”
ISSUE:
Does the glass beading or the metal impart the essential character to the subject merchandise?
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 of the last entry made on October 11, 2004. (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. 4701-05-100176 was properly accorded to protestant pursuant to 19 C.F.R. § 174.24. In accordance with § 174.24 (a), the decision against which the protest was filed 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 substantially similar merchandise.
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 subject import is a composite article, made from both glass and metal. Classification must therefore be in accordance with GRI 3(b). That rule provides, in pertinent part:
...composite goods consisting of different materials…shall be classified as if they consisted of the material or component which gives them their essential character.
At issue is which of these composite materials imparts the essential character. The HTSUS provisions under consideration are as follows:
7018 Glass beads, imitation pearls, imitation precious or semiprecious stones and similar glass smallwares and articles thereof other than imitation jewelry; glass eyes other than prosthetic articles; statuettes and other ornaments of lamp-worked glass, other than imitation jewelry; glass microspheres not exceeding 1mm in diameter:
7018.90 Other:
7018.90.50 Other
* * *
7419 Other articles of copper:
Other:
7419.99 Other:
7419.99.15 Containers of a kind normally carried on the person, in the pocket or in the handbag
* * *
The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the HTSUS. 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 relevant EN is as follows:
Heading 70.18:
This heading covers a range of widely diversified glass articles, most of which are used directly or after further processing, for ornamental and decorative purposes
These include:
(A) Glass beads (e.g. as used…for decorating articles (trimmings, embroidery, etc.)…These beads, whether or not coloured [sic.], are in the form of small pierced balls, more or less round n shape….
* * *
Classification of the subject compacts is dependent upon determining the essential character. Merchandise adorned with glass beads has traditionally been classified under heading 7018, HTSUS. Provided that the beads cover the entire upper or outer surface of the article, the beading, not the material beneath, imparts essential character. See Headquarters Ruling (HQ) 966663, dated March 31, 2004 (Plastic grapes “covered with” glass beads classified under subheading 7018.90.50, HTSUS); HQ 966664, dated March 31, 2004 (Beaded berry wreath in which the berries were “completely covered” with glass beads, classified under subheading 7018.90.50, HTSUS); HQ 084748, dated August 22, 1989 (“Fully glass beaded handbag” classified under subheading 7018.90.50, HTSUS); and New York Ruling (NY) 888300, dated May 5, 1993 (Two trinket boxes, the exterior of which were “completely covered” with glass beads, classified under subheading 7018.90.50, HTSUS).
This complete coverage requirement ensures that the glass beading serves as the focal point of the entire product, rather than as a mere decoration. Where the glass beading is found to offer mere decoration, beaded articles are excluded from heading 7018, HTSUS. See NY L87107, dated September 8, 2005 (Twine book marks which were “merely” decorated with glass beads, classified under subheadings 5609.00.3000, and 6307.90.9889, HTSUSA); NY I88555, dated December 10, 2002 (Mini wooden sugar lids which featured glass beading only at their tip, classified under subheading 4421.90.9740, HTSUSA).
According to Estee Lauder, the subject compact is “decorated on the top side…with glass beads.…” A visual inspection of the article confirms that the glass beading covers the entire upper surface of the compact. Furthermore, the use of bright and varying colors ensures that the glass beads are the focal point of the entire compact. Like the plastic grapes in HQ 966663, the top and sides of the compact are “covered with” glass beads. Because the glass beading rises above the level of “mere decoration,” it imparts the essential character to the subject article. Accordingly, the cosmetics compact will be classified as if it consists only of the glass beading.
Estee Lauder cites five rulings in which imports were classified in headings other than 7018, HTSUS, as evidence that the compacts were improperly classified. The first three of these rulings are HQ 082992, dated September 13, 1989 (Plastic cosmetics compact without adornment classified under heading 3923, HTSUS), NY 831916, dated September 29, 1998 (Injection molded plastic compact without adornment, classified under heading 3923, HTSUS), and NY A88945, dated November 25, 1996 (Wooden jewelry box featuring inlaid mother of pearl classified under heading 4420, HTSUS). In each, CBP classified articles without beading or glass adornment of any kind. These articles are factually distinguishable from the subject import and have no bearing on the present matter.
Estee Lauder also cites NY I81588, dated May 17, 2002 and NY E83190, dated June 30, 1999. In both cases, the merchandise was adorned with plastic not glass. As a result, the articles were prima facie excluded from heading 7018, HTSUS, which provides only for glass beads, imitation pearls, imitation precious or semiprecious stones.
HOLDING:
By application of GRI 3(b), the cosmetics compact is classifiable under heading 7018, HTSUS. Specifically it is classifiable under subheading 7018.90.5000, HTSUSA, which provides for: “[g]lass beads, imitation pearls, imitation precious or semiprecious stones and similar glass smallwares and articles thereof other than imitation jewelry; glass eyes other than prosthetic articles; statuettes and other ornaments of lamp-worked glass, other than imitation jewelry; glass microspheres not exceeding 1mm in diameter: Other: Other.” The 2004 column one, general rate of duty is 6.6 percent ad valorem.
The protest should be DENIED. In accordance with the Protest/Petition Processing Handbook (CIS HB, January 2002, pp. 18 and 21), you are to mail this decision, together with the Customs 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 the decision. Sixty days from the date of the decision 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