CLA-2 OT:RR:CTF:FTM H251022 GaK

Valerie Smith
Director of Importing
3875 SW Hall Boulevard
Beaverton, OR 97005

RE: Revocation of NY N048019, NY N245539, and NY N247373; classification of polyester flower leis

Dear Ms. Smith:

On January 7, 2009, U.S. Customs and Border Protection (“CBP”) issued to you New York Ruling Letter (“NY”) N048019. CBP also issued NY N245539, dated September 19, 2013, and NY N247373, dated November 20, 2013, on similar products. The rulings pertain to the tariff classification under the Harmonized Tariff Schedule of the United States (“HTSUS”) of polyester flower leis. In NY N048019, NY N245539, and NY N247373, CBP classified the polyester flower leis under subheading 7117.90.9000, HTSUS. We have reviewed these rulings and have found them to be in error. For the reasons described in this ruling, we hereby revoke NY N048019, NY N245539, and NY N247373.

On April 12, 2017, pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. 1625(c)(1), as amended by section 623 of Title VI, notice of the proposed action was published in the Customs Bulletin Vol. 51, No. 15. No comments were received in response to this notice.

FACTS:

In NY N048019, CBP described the merchandise, in pertinent part, as follows:

The item is a 34 inch artificial floral lei worn over the neck. The flowers are on a string and are separated by clear plastic tubes measuring 1 inch long by 3/16 of an inch in diameter. Individual flowers of different colors are made of polyester, and measure approximately 2.5 inches in diameter.

It is stated that each flower is made from a single die-cut piece of material. This is analogous to cutting the shape of each flower from a single piece of paper.

ISSUE:

Whether the subject merchandise is classifiable under heading 6702, HTSUS, or under heading 7117, HTSUS.

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 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 be applied in order.

The 2017 HTSUS headings under consideration in this case are as follows:

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

* * *

7117 Imitation jewelry:

Note 9 to Chapter 71 states as follows:

9. For the purposes of heading 7113, the expression “articles of jewelry” means:

Any small objects of personal adornment (for example, rings, bracelets, necklaces, brooches, earrings, watch chains, fobs, pendants, tie pins, cuff links, dress studs, religious or other medals and insignia); and

Articles of personal use of a kind normally carried in the pocket, in the handbag or on the person (for example, cigar or cigarette cases, snuff boxes, cachou or pill boxes, powder boxes, chain purses or prayer beads).

These articles may be combined or set, for example, with natural or cultured pearls, precious or semiprecious stones, synthetic or reconstructed precious or semiprecious stones, tortoise shell, mother-of-pearl, ivory, natural or reconstituted amber, jet or coral.

Note 11 to Chapter 71 states as follows:

11. For the purposes of heading 7117, the expression “imitation jewelry” means articles of jewelry within the meaning of paragraph (a) of note 9 above (but not including buttons or other articles of heading 9606, or dress combs, hair slides or the like, or hairpins, of heading 9615), not incorporating natural or cultured pearls, precious or semiprecious stones (natural, synthetic or reconstructed) nor (except as plating or as minor constituents) precious metal or metal clad with precious metal.

Applying GRI 1, Note 11 to Chapter 71 explains that imitation jewelry means “articles of jewelry,” defined in Note 9(a) to Chapter 71, that do not incorporate cultured pearls, precious/semiprecious stones or precious metal. As imitation jewelry of heading 7117, HTSUS, only imitates the articles of jewelry which are described in Note 9(a), we will not apply the description of jewelry set forth in Note 9(b) to the instant merchandise.

Note 9(a) states that, for the purposes of heading 7113, HTSUS, “articles of jewelry” are small articles of adornment. Note 9(a) also provides a list of examples, which include rings, earrings, bracelets and other articles of jewelry. In NY J89816, CBP classified the plastic nail jewels and the body stickers under heading 7117, HTSUS, as imitation jewelry. However, while paragraph (a) of Note 9 defines articles of jewelry as “small articles of personal adornment,” we cannot read paragraph (a) without the context of the first clause of Note 9. Note 9 begins with “for the purposes of heading 7113, the expression ‘articles of jewelry’ means …” As such, imitation jewelry must imitate articles of jewelry which are described in paragraph (a) and are classified under heading 7113, HTSUS.

Heading 7113, HTSUS, provides for “articles of jewelry and parts thereof, of precious metal or of metal clad with precious metal.” Thus, imitation jewelry must imitate small articles of personal adornment of precious metal, or of metal clad with precious metal. Per Note 9, imitation jewelry may be combined or set with imitations of pearls, precious or semiprecious stones, tortoise shell, mother-of-pearl, ivory, amber, jet or coral.

The subject merchandise consists of flowers made of polyester. The polyester flowers do not imitate articles of jewelry clad with any type of metal. Rather they imitate flowers which are classified in heading 0603, HTSUS. As the polyester flowers do not imitate jewelry of heading 7113, HTSUS, they cannot be classified as imitation jewelry under heading 7117, HTSUS.

We return to GRI 1 to determine if the merchandise is classifiable under another heading. In understanding the language of the HTSUS, the Explanatory Notes (“ENs”) of the Harmonized Commodity Description and Coding System, which constitute the official interpretation of the Harmonized System at the international level, may be utilized. The ENs, although not dispositive or legally binding, provide a commentary on the scope of each heading, and are generally indicative of the proper interpretation of the HTSUS. See T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989).

The ENs to heading 67.02 provides as follows:

This heading covers:



(3) Articles made of artificial flowers, foliage or fruit (e.g., bouquets, garlands, wreaths, plants), and other articles, for use as trimmings or as ornaments, made by assembling artificial flowers, foliage or fruit.



Subject to the exclusions listed below, these goods may be made of textile materials, felt, paper, plastics rubber, leather, metal foil, feathers, shells or of other materials of animal origin…Provided they meet the specifications of the preceding paragraphs, all such articles fall in this heading irrespective of their degree of finish.

This heading does not include:



(e) Artificial flowers, foliage or fruit, of pottery, stone, metal, wood, etc., obtained in one piece by moulding, forging, carving, stamping or other process, or consisting of parts assembled otherwise than by binding, glueing, fitting into one another or similar methods.

Based upon the express terms of heading 6702, HTSUS and the scope put forth in the corresponding ENs, the polyester flower lei is correctly classified under heading 6702, HTSUS. The polyester flower lei is made of textile materials. It is assembled by connecting the flowers with a string and spacing them using clear plastic tubes. Therefore, the polyester flower leis are classified under heading 6702, HTSUS, specifically under subheading 6702.90.35, HTSUS, which provides for “[a]rtificial flowers, foliage and fruit and parts thereof; articles made of artificial flowers, foliage or fruit: Of other materials: Other: Of man-made fibers.”

HOLDING:

Pursuant to GRIs 1 and 6, the polyester flower lei is classified in subheading 6702.90.35, HTSUS, which provides for “[a]rtificial flowers, foliage and fruit and parts thereof; articles made of artificial flowers, foliage or fruit: Of other materials: Other: Of man-made fibers.” The 2017 column one, general rate of duty is 9 percent ad valorem.

Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the World Wide Web at www.usitc.gov/tata/hts/.

EFFECTS ON OTHER RULINGS:

NY N048019, dated January 7, 2009, NY N245539, dated September 19, 2013, and NY N247373, dated November 20, 2013, are revoked.

Sincerely,

Myles B. Harmon, Director
Commercial and Trade Facilitation Division