OT:RR:CTF:CPMM H287717 APP
Port Director
U.S. Customs and Border Protection
157 Tradeport Drive
Atlanta, Georgia 30354
Attn.: Jeannelle Brooks, Senior Import Specialist
RE: Internal Advice; Tariff classification of glass and plastic “jeweled” covers for cell phones
Dear Port Director:
This is in reference to your October 18, 2017 request for internal advice, initiated by counsel for Global Cellular, Inc. (“requestor”), pertaining to the tariff classification under the Harmonized Tariff Schedule of the United States (“HTSUS”), of glass and plastic “jeweled” covers for cell phones. Our response follows.
FACTS:
The instant iPhone 4/4s DeBari Peacock Purple cover and Motorola Droid 2 DMD Zebra Star cover are plastic cell phone covers that function as fashion accessories. The base material of the covers consists of plastic molded to fit the cell phone completely and covered with glass or plastic imitation gemstones. The iPhone 4/4s DeBari Peacock Purple cover has a purple peacock made of white and purple imitation gemstones at the top surrounded by small round glass imitation gemstones in the form of beads. The glass imitation gemstones of the iPhone 4/4s DeBari Peacock Purple cover account for the vast majority of its total value and material quantity. The Motorola Droid 2 DMD Zebra Star cover has pink and black zebra stripes made of plastic imitation gemstones in the form of beads. The plastic imitation gemstones of the Motorola Droid 2 DMD Zebra Star cover account for more of the total value and material quantity of the cover.
The covers were entered free of duty under subheading 8517.70.00, HTSUS, which provides for “Telephone sets, including telephones for cellular networks or for other wireless networks; other apparatus for the transmission or reception of voice, images or other data, including apparatus for communication in a wired or wireless network (such as a local or wide area network), other than transmission or reception apparatus of heading 8443, 8525, 8527 or 8528; parts thereof: Parts.” The requestor does not dispute that subheading 8517.70.00, HTSUS, is the incorrect tariff classification for both the glass and plastic “jeweled” covers.
Below are images of the two samples provided by the requestor:
Sample 1: iPhone 4/4s DeBari Peacock Purple cover
Sample 2: Motorola Droid 2 DMD Zebra Star cover
ISSUES:
Whether the glass gemstone “jeweled” plastic cover is classified in subheading 7018.10.20, HTSUS, as loose imitation precious or semiprecious stones, and similar glass smallwares, or in subheading 7018.90.50, HTSUS, as an article comprised of imitation precious or semiprecious stones, and similar glass smallwares.
Whether the plastic cover adorned with plastic imitation gemstones is classified in subheading 3926.90.35, HTSUS, as an article adorned with beads, bugles and spangles, or in subheading 3926.90.40, HTSUS, as loose plastic imitation gemstones.
LAW AND ANALYSIS:
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 may then be applied.
GRI 2(b) provides that the classification of goods consisting of more than one material or substance shall be according to the principles of GRI 3. GRI 3(a) states that goods should be classified according to the heading, which affords the most specific description, unless the multiple headings under consideration refer to only part of the materials or substances contained in goods that are mixed or composite, or to only part of the items in a set put up for retail sale. GRI 3(b) provides that “composite goods consisting of different materials or made up of different components” are to be classified “as if they consisted of the material or component which gives them their essential character,” and where this is not possible, “under the heading which occurs last in numerical order among those which equally merit consideration.”
The HTSUS provisions under consideration are as follows:
3926 Other articles of plastics and articles of other materials of headings 3901 to 3914:
3926.90 Other:
Beads, bugles and spangles, not strung (except temporarily) and not set; articles thereof, not elsewhere specified or included:
3926.90.35 Other
3926.90.40 Imitation gemstones
. . .
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 1 mm in diameter:
7018.10 Glass beads, imitation pearls, imitation precious or semiprecious stones and similar glass smallwares:
7018.10.20 Imitation precious or semiprecious stones (except imitation beads thereof)
7018.90 Other:
7018.90.50 Other
The Harmonized Commodity Description and Coding System Explanatory Notes (“ENs”) constitute the official interpretation of the Harmonized System. While not legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the Harmonized System and are generally indicative of the proper interpretation of these headings. See Treasury Decision (T.D.) 89-80, 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).
The ENs to GRI 3(b), state, in relevant part, that:
(VIII) The factor which determines essential character will vary as between different kinds of goods. It may, for example, be determined by the nature of the material or component, its bulk, quantity, weight or value, or by the role of a constituent material in relation to the use of the goods.
(IX) For the purposes of this Rule, composite goods made up of different components shall be taken to mean not only those in which the components are attached to each other to form a practically inseparable whole but also those with separable components, provided these components are adapted one to the other and are mutually complementary and that together they form a whole which would not normally be offered for sale in separate parts.
Requestor argues that, via GRI 3(b), the glass imitation gemstone material imparts the essential character of the iPhone 4/4s DeBari Peacock Purple cover at issue and consistent with New York Ruling Letter (“NY”) G83376, dated October 24, 2000 (classifying glass imitation gemstones in subheading 7018.10.20, HTSUS) and NY 806973, dated February 23, 1995 (classifying imitation gemstones in subheading 7018.10.20, HTSUS), the glass “jeweled” cover is classifiable under subheading 7018.10.20, HTSUS. With respect to the cover with plastic imitation gemstones, requestor claims that, by application of GRI 3(b), the plastic imitation gemstones impart the essential character and the Motorola Droid 2 DMD Zebra Star cover is classifiable under subheading 3926.90.40, HTSUS, consistent with NY N175305, dated
August 4, 2011 (classifying a sequin cell phone holder wallet with sequins made of plastic in subheading 3926.90.35, HTSUS). Requestor previously described the plastic imitation gemstones as beads, but now asserts that they are not beads and that subheading 3926.90.35, HTSUS, only applies to beads, bugles, and spangles, not strung (except temporarily) and not set, and the plastic imitation gemstones do not meet the dictionary definition of beads, bugles, or spangles.
First, we will determine the classification of the glass gemstone cover. The iPhone 4/4s DeBari Peacock Purple cover consists of molded plastic adorned with glass beads and glass imitation gemstones (imitation precious or semiprecious stones and similar glass smallwares), which account for the vast majority of the value and weight of the cover. It is not disputed that the glass gemstones impart the essential character pursuant to GRI 3(b) and thus the cover is classified in heading 7018, HTSUS. However, once the subheading determination commences at GRI 6, we begin with GRI 1 anew. At the 6-digit level, there are no competing provisions. Subheading 7018.10, HTSUS, the provision for glass beads and small wares, simply does not describe articles of glass beads, imitation precious or semiprecious stones, and similar glass small wares, while subheading 7018.90, HTSUS does.
In Headquarters Ruling Letter (“HQ”) H269055, dated May 24, 2017, U.S. Customs and Border Protection (“CBP”) classified a glass bead necklace with attached plastic identification holder in subheading 7018.90.50, HTSUS, as an article of glass beads. CBP explained that the item was not classifiable in subheading 7018.10, HTSUS, as the glass beads themselves, because the finished article was not loose glass beads. Rather, the finished article was classifiable in subheading 7018.90.50, HTSUS.
In NY G82114, dated October 12, 2000, CBP classified a snowman figurine made of ceramics completely covered with glass beads in subheading 7018.90.50, HTSUS. CBP clarified that, “… the merchandise at issue cannot simply be described as ‘glass beads’; in fact, it is an article of glass beads. While subheading 7018.10.5000 provides for glass beads, this provision does not cover articles of glass beads. Therefore, subheading 7018.10.5000, HTS, is not applicable to the snowman figurine. Articles of glass beads are covered by subheading 7018.90.5000, HTS, not subheading 7018.10.5000.”
Consistent with HQ H269055 and NY G82114, the instant glass gemstone cover is made of plastic covered with glass gemstones and as such it is an article of glass beads and glass-imitation gemstones. Unlike in NY G83376 and NY 806973 cited by the requestor, the instant merchandise is a cell phone cover and not loose imitation gemstones. Accordingly, the instant iPhone 4/4s DeBari Peacock Purple cover is classifiable in subheading 7018.90.50, HTSUS.
Next, we will determine whether the plastic “jeweled” Motorola Droid 2 DMD Zebra Star cover is classifiable in subheading 3926.90.35, HTSUS, as an article adorned with beads, bugles and spangles, or in subheading 3926.90.40, HTSUS, as loose plastic imitation gemstones. For guidance on the common meaning of beads, bugles and spangles, we looked to the dictionary definition. The online Oxford English Dictionary, at https://en.oxforddictionaries.com/, defines a bead as a “small piece of glass, stone, or similar material that is threaded with others to make a necklace or rosary or sewn on to fabric.” The same dictionary defines a bugle as “an ornamental tube-shaped glass or plastic bead sewn on to clothing” and a spangle as “a small thin piece of glittering material, typically sewn as one of many on clothing for decoration; a sequin.” From the dictionary definition and consistent with requestor’s previous description of the plastic ornaments as “beads,” and our careful review of the product, the plastic imitation gemstones resemble beads and spangles.
The instant Motorola Droid 2 DMD Zebra Star cover is classifiable as an article of beads and spangles of subheading 3926.90.35, HTSUS, because the plastic imitation gemstones are indeed described by the terms “beads” and “spangles,” and because the subheading describes the entire good as an article thereof. In NY N119159, dated September 7, 2010, and in NY N240889, dated April 30, 2013, CBP classified sequined tote bags in subheading 3926.90.35, HTSUS. In NY N035976, dated August 29, 2008, CBP classified a beaded round clutch, the front side of which was completely covered with 95% plastic beads and 5% glass beads, in subheading 3926.90.35, HTSUS, because the plastic beads imparted the essential character to the good. In HQ 962809, dated September 21, 2000, CBP classified four sequin-covered, beaded purses under subheading 3926.90.35, HTSUS, as articles of plastic spangles.
Therefore, the subject glass imitation gemstone cover is described by the provision for articles of imitation stones and similar glass smallwares of subheading 7018.90.50, HTSUS, and the plastic imitation gemstone cover is described by the provision for articles of beads and spangles of subheading 3926.90.35, HTSUS.
HOLDING:
By application of GRIs 1, 3(b) and 6, the instant iPhone 4/4s DeBari Peacock Purple cover is classified in heading 7018, HTSUS, specifically in subheading 7018.90.50, HTSUS, which provides for “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 1 mm in diameter: Other: Other.” The column one, general rate of duty is 6.6% ad valorem.
By application of GRIs 1 and 6, the instant Motorola Droid 2 DMD Zebra Star cover is classified in heading 3926, HTSUS, specifically in subheading 3926.90.35, HTSUS, which provides for “Other articles of plastics and articles of other materials of headings 3901 to 3914: Other: Beads, bugles and spangles, not strung (except temporarily) and not set; articles thereof, not elsewhere specified or included: Other.” The column one, general rate of duty is 6.5% ad valorem.
Duty rates are provided for convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided at https://hts.usitc.gov/current.
You are to mail this decision to the requestor, through its counsel, no later than 60 days from the date of the decision. At that time, the Office of Trade, Regulations and Rulings will make the decision available to CBP personnel and to the public on the Customs Rulings Online Search System (“CROSS”), at https://rulings.cbp.gov/, and through other methods of public distribution.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division