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HQ W968066




October 5, 2006

CLA-2 RR:CTF:TCM W968066 KSH

CATEGORY: CLASSIFICATION

TARIFF NO.: 1404.90.0000

Ms. Anne Huffman
THT Designs
10917 Harry Watanabe Parkway
Omaha, NE 68128-5734

RE: Modification of New York Ruling Letter (NY) K83112, dated March 2, 2004; Classification of Styrofoam balls coated with seeds.

Dear Ms. Huffman:

This letter is to inform you that the Bureau of Customs and Border Protection (CBP) has reconsidered New York Ruling Letter (NY) K83112, issued to you on March 2, 2004, concerning the classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) of a leaf tray and twelve seed coated Styrofoam balls. The seed coated Styrofoam balls were classified in subheading 3926.40.0000, HTSUSA, which provides for “Other articles of plastics and articles of other materials of headings 3901 to 3914: Statuettes and other ornamental articles.” We have reviewed that ruling and found it to be in error as it pertains to the classification of the seed coated Styrofoam balls. Therefore, this ruling modifies NY K83112.

FACTS:

The merchandise at issue consists of twelve 1.5-inch diameter Styrofoam balls. The surface of each Styrofoam ball is coated with natural seeds using glue. Four balls are covered with mung bean, four with ormosia, and four with soya.

ISSUE:

Whether the seed coated Styrofoam balls are classified in heading 3926, HTSUSA, as articles of plastics or in heading 1404, HTSUSA, as vegetable products not elsewhere specified or included.

LAW AND ANALYSIS:

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 Explanatory Notes (EN) to the Harmonized Commodity Description and Coding System, which represent the official interpretation of the tariff at the international level, facilitate classification under the HTSUSA by offering guidance in understanding the scope of the headings and GRI.

The items are not specifically provided for in any one heading. Accordingly, they may not be classified solely on the basis of GRI 1. Further, GRI 2(a) is inapplicable because it applies to incomplete or unfinished articles, and the bean balls are imported in a finished complete condition. GRI 2(b) states that the classification of goods consisting of more than one material or substance shall be according to the principles of GRI 3. The subject seed coated Styrofoam balls are decorative items consisting of foamed plastic spheres that are covered with various types of seeds. Thus, for tariff purposes, they constitute goods consisting of two or more substances or materials. As such, the items are arguably classifiable under heading 3926, HTSUSA, as other articles of plastics or heading 1404, HTSUSA, as vegetable products not elsewhere specified or included.

GRI 3(a) states that when, by application of rule 2(b) or for any other reason, goods are, prima facie, classifiable under two or more headings, the heading which provides the most specific description shall be preferred to headings providing a more general description. However, when two or more headings each refer to part only of the materials or substances contained in mixed or composite goods or to part only of the items in a set put up for retail sale, those headings are to be regarded as equally specific in relation to those goods, even if one of them gives a more complete or precise description of the goods. As the subject seed coated Styrofoam balls are composite goods, we must apply rule 3(b), which provides that composite goods are to be classified according to the component that gives the good its essential character. We must determine whether the foamed plastic sphere or the seeds impart the essential character to the article.

EN VIII to GRI 3(b) explains that "[t]he 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 the constituent material in relation to the use of the goods."

The internal foamed plastic spheres may provide the bulk and shape, however the surface seeds that cover the Styrofoam balls provide the texture, markings and color. The seeds impart the visual impact, consumer appeal and nature of the article. The essential character of the seed coated Styrofoam balls is the seeds. The seed coated Styrofoam balls are accordingly classifiable in heading 1404, HTSUSA. They are specifically provided for in subheading 1404.90.0000, HTSUSA.

HOLDING:

The seed coated Styrofoam balls are classified in heading 1404, HTSUSA. They are specifically provided for in subheading 1404.90.0000, HTSUSA, which provides for "Vegetable products not elsewhere specified or included: Other." The general, column one rate of duty is Free.

EFFECT ON OTHER RULINGS:

NY K83112, dated March 2, 2004, is hereby modified.

Sincerely,

Myles B. Harmon, Director
Commercial and Trade Facilitation Division

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