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HQ 966665




March 31, 2004

CLA-2 RR:CR:GC 966665 NSH

CATEGORY: CLASSIFICATION

TARIFF NO.: 7018.90.5000

Ms. Barbara Y. Wierbicki
Tompkins & Davidson, LLP
One Astor Plaza
1515 Broadway
New York, New York 10036-8901

RE: NY I82557 and NY I82558 revoked; Articles of glass beads

Dear Ms. Wierbicki:

This letter is pursuant to U.S. Customs and Border Protection (Customs) reconsideration of New York Ruling letters (NY) I82557 and I82558, dated June 19, 2002 and June 13, 2002, respectively, on behalf of Avon Products, Inc. We have reviewed the classifications and have determined that they are incorrect. This ruling sets forth the correct classifications.

Pursuant to section 625(c), Tariff Act of 1930 (19 U.S.C. 1625(c)), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act, Pub. L. 103-182, 107 Stat. 2057, 2186 (1993), notice of the proposed revocation of NY I82557 and NY I82558, as described below, was published in the Customs Bulletin on February 25, 2004. No comments were received in response to the notice.

FACTS:

The two articles at issue were previously classified in NY I82557 and NY I82558.

Customs classified both items under subheading 6702.10.20, HTSUS, as “[a]rtificial flowers, foliage and fruit and parts thereof; articles made of artificial flowers, foliage or fruit: [o]f plastics: [a]ssembled by binding with flexible materials such as wire, paper, textile materials, or foil, or by gluing or by similar methods.” In researching similar issues, Customs concluded that its classification was incorrect and that these items should be classified under subheading 7018.90.50, HTSUS, as “[g]lass beadsand similar glass smallwares and articles thereof other than imitation jewelry;glass microspheres not exceeding 1 mm in diameter: [o]ther: [o]ther.”

In NY I82557, Customs classified item PP239211. The item, identified as a “Jeweled Fruit Potpourri,” resembles a collection of scented artificial fruit and nuts. The varieties of fruit represented are apples, peaches, grapes, strawberries, cranberries, oranges and pears. The fruit is constructed from styrofoam, painted the appropriate color for the representative fruit and covered with glass beads. These glass beads impart a wet or sparkling look to the item. Some of the fruit incorporates polyester leaves and a stem of plastic or wire. The artificial nuts are wooden and painted various colors.

In NY I82558, Customs classified item PP239215. The item, identified as a “kissing ball,” measures approximately 4 inches in diameter and resembles artificial fruit. It is constructed from styrofoam and covered with glass beads. These glass beads impart a wet or sparkling look to the item. The segments of the item made to resemble artificial fruit are set into a larger styrofoam ball by means of metal stems, which also incorporates green leaves made from polyester and a burgundy colored ribbon for hanging the item. By total weight of the item, the ribbon is 5 percent, the PVC leaf is 5 percent, the glass beads are 60 percent, the polyfoam fruit is 20 percent and the acetate box is 10 percent.

ISSUE:

Whether the glass-beaded artificial fruit is classified as artificial foliage or as an article of glass beads.

LAW AND ANALYSIS:

Merchandise is classifiable under the Harmonized Tariff Schedule of the United States (HTSUS) in accordance with 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 and, provided such headings or notes do not otherwise require, according to the remaining GRIs 2 through 6.

The Harmonized Commodity Description and Coding System Explanatory Notes (EN) to the HTSUS constitute the official interpretation of the Harmonized System at the international level. Although neither legally binding or dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of the headings. See T.D. 89-80.

The HTSUS provisions under consideration are as follows:

6702 Artificial flowers, foliage and fruit and parts thereof; articles made of artificial flowers, foliage or fruit:

.10 Of plastics:

Assembled by binding with flexible materials such as wire, paper, textile materials, or foil, or by gluing or by similar methods

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:

7018.90 Other:

7018.90.50 Other

Artificial fruit is generally classified under heading 6702, HTSUS, as “[a]rtificial flowers, foliage and fruit and parts thereof; articles made of artificial flowers, foliage or fruit: [o]f plastics: [a]ssembled by binding with flexible materials such as wire, paper, textile materials, or foil, or by gluing or by similar methods.” Although the two items in question contain some of the materials described in heading 6702, HTSUS, and by their shape resemble artificial fruit, they are covered with glass beads. In contrast, articles of glass beads are listed under heading 7018, HTSUS.

The two articles at issue are described as artificial fruit that is covered with glass beads, the exception being the polyester leaves. The items are intended to be hanging ornaments or display pieces, not intended for use on a specific occasion. The glass beads impart to the items a wet or sparkling look which substantially enhances the visual appeal of the fruit and their merchantability. Furthermore, located exclusively on the surface of the items, and virtually covering them in their entirety, the glass beads effectively hide from view most all of the other materials used in their construction. On item PP239215, the glass beads constitute 60 percent of the total weight and are therefore the heaviest material used in its construction.

Note 3(a) to chapter 67 states that heading 6702 does not cover articles of glass and directs that such an article be classified in chapter 70. Because these items are substantially covered with glass beads on their surface that effectively hide from view most all of the other materials used in their construction, and because by weight the glass beads on item PP239215 are the most prevalent material used in its construction, these are articles of glass. Although information on percentages is not available for item PP239211, it is exceedingly similar to item PP239215. Therefore, both items are precluded from classification under heading 6702, HTSUS, by reference to the chapter note. Instead, classification will be under chapter 70.

The ENs to heading 7018, HTSUS, provide, in pertinent part:

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:

(E) Various glass articles (other than imitation jewellery), obtained by assembling certain of the individual articles mentioned above, such as flowers, foliage and pearl ornaments for wreaths; fringes made of beads or bulges and intended for lampshades, shelves, etc.; blinds and portieres made of glass beads or bugles, and table mats made similarly; rosaries made of glass beads or imitation precious or semi-precious stones.

In view of the foregoing, items PP239211 and PP239215 are classified under subheading 7018.90.50 as “[g]lass beadsand articles thereof other than imitation jewelry;glass microspheres not exceeding 1 mm in diameter: [o]ther: [o]ther.”

HOLDING:

Pursuant to GRI 1, the classification for items PP239211 and PP239215 is under subheading 7018.90.5000, HTSUS, as “[g]lass beadsand articles thereof other than imitation jewelry;glass microspheres not exceeding 1 mm in diameter: [o]ther: [o]ther.” The rate of duty is 6.6 percent ad valorem.

EFFECT ON OTHER RULINGS:

NY I82557 and NY I82558 are REVOKED. In accordance with 19 U.S.C. 1625(c), this ruling will become effective 60 days after publication in the Customs Bulletin.

Sincerely,

Myles B. Harmon, Director
Commercial Rulings Division

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