CLA-2 CO:R:C:T 955578 NLP
TARIFF No.: 6702.90.3500; 6702.90.6500
District Director
United States Customs Service
P.O. Box 619050
1205 Royal Lane
Dallas/ Ft. Worth, TX 75261-0950
RE: Internal Advice request 87/93; heading 6702; essential character of artificial flowers; GRIs 3(b) and 3(c); NYRL 872016, HRLs 953686, 089957, 087038 and 087923
Dear Sir:
This is in response to Internal Advice Request 87/93, filed
by Horton, Whiteley & Cooper, on September 28, 1993, on behalf of
their client, Designer Accents, concerning the classification of
artificial flowers under the Harmonized Tariff Schedule of the
United States (HTSUS). Samples of the artificial flowers were
submitted for our examination.
FACTS:
On August 9, 1993, two notices of action were issued to
Designer Accents notifying them that four of their artificial
flower products, styles 8024, 8026, 8031 and 2117D, were being
reclassified in subheading 6702.90.6500, HTSUS, which provides
for "[a]rtificial flowers, foliage and fruit and parts thereof;
articles made of artificial flowers, foliage or fruit: [o]f other
materials: [o]ther: [o]ther." This reclassification was based on
a finding that the articles essential characters by weight and
bulk were "other than the man-made fiber".
The first artificial flower sample at issue, style 8024, is
a Hollanda iris whose petals and petal backing are composed of
100% polyester. The bud and backing are also composed of 100%
polyester. The article has leaves that are composed of paper
covered with latex. The second sample, style 8026, is a pink
rose whose petals and petal backing are made of 100% polyester.
The leaves are made of paper covered with latex. This flower
also has a stamen made of flour and wire acetate. The third
sample, style 2117D, is a magnolia whose petals are composed of
70% polyester and 30% cotton. The center of the flower is made
of styrofoam. The leaves are made of paper covered with latex.
The fourth sample, style 8031, is a Persicaria spray composed of
small groupings of berries made of styrofoam. The berries are
surrounded by leaves made of paper covered with latex. The
sample also has stamen made up of flour and rope.
Counsel provided us with the following cost/weight
breakdowns for styles 8024, 8026 and 8031 and the cost breakdown
for style 2117D. These are as follow:
STYLE 8024
cost (U.S. dollars) weight (gms)
Petals 0.11 3
Petal backing 0.11 3
Leaves 0.03 2
Bud/Backing 0.04 0.60
Padding 0.02 0.40
Floral tape 0.02
Stem/wire & glue 0.04 21 (floral tape included)
Label 0.01
Packing 0.03
Labor 0.27
STYLE 8026
Petals 0.27 5
Petal backing 0.05 0.25
Leaves 0.07 3
Stamen 0.01 0.05
Floral tape 0.03
Stem/wire & glue 0.03 31.25 (floral tape
included)
Label 0.01
Packing 0.04
Labor 0.34
STYLE 8031
Stamen 0.01 0.50
Leaves 0.23 3
Floral tape 0.02
Stem/wire & glue 0.11 46.39 (floral tape
included)
Label 0.01
Packing 0.035
Labor 0.29
Berry Styrofoam 0.015 0.20
STYLE 2117D
Petals 0.41
Leaves 0.18
Center 0.15
Floral tape 0.10
Stem/wire & glue 0.40
Label 0.01
Packing 0.15
Labor 0.25
Profit 0.19
It is counsel's position that samples 8024, 8026 and 2117D
are classifiable in subheading 6702.90.3500, HTSUS, which
provides for "[a]rtificial flowers, foliage and fruit and parts
thereof; articles made of artificial flowers, foliage or fruit:
[o]f other materials: [o]ther: [o]f man-made fibers." The
essential character of these three products is imparted by their
man-made fiber flower portions. Concerning style 8031, counsel
states that this style does not have an artificial flower, nor
does it have a man-made fiber portion. Therefore, this style was
mistakenly entered in subheading 6702.90.3500, HTSUS.
ISSUE:
What is the tariff classification of artificial flower
styles 8024, 8026, 2117D and 8031?
LAW AND ANALYSIS:
The classification of goods under the HTSUS is governed by
the General Rules of Interpretation (GRI's), taken in order. GRI
1 provides that classification 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 GRI's may be applied, taken in
order.
Heading 6702, HTSUS, provides for "[a]rtificial flowers,
foliage and fruit and parts thereof; articles made of artificial
flowers, foliage and fruit." The flower portions of the first
three samples are classifiable in subheading 6702.90.3500, HTSUS,
and the leaf portions of all four samples are classifiable in
subheading 6702.90.6500, HTSUS. The other portions of the
flowers are classifiable in various other headings of the HTSUS.
Therefore, as there is no one heading within the HTSUS that
specifically describes this merchandise, classification is not
pursuant to GRI 1. As the articles are prima facie classifiable
within two or more subheadings within heading 6702, HTSUS, and
under two or more other HTSUS headings, GRI 3 is applicable.
See, GRI 6. GRI 3 states, in pertinent part, the following:
When by application of rule 2(b) or for any other reason, goods are, prima facie, classifiable under two or more headings, classification shall be effected as follows:
(b) Mixtures, composite goods consisting of different materials or made up of different components, and goods put up in sets for retail sale, which cannot
be classified by reference to 3(a), shall be classified as if they consisted of the
material
or component which gives them their essential character, insofar as this criterion is applicable.
The Harmonized Commodity Description and Coding System
Explanatory Notes (ENs) to GRI 3(b) provide interpretations of
the terms "composite goods" and "essential character."
Regarding composite goods, EN IX to GRI 3(b) provides the
following:
For the purposes of this Rule, composite goods made up of different co mponents shall be taken to mean not only those in which the components are attached to each other to form a practically inseparable whole but 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.
Regarding "essential character", EN VIII to GRI 3(b), page
4, states that:
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.
It is counsel's position that Customs' rulings have
generally held that the flower portion of the artificial flower
imparts the essential character to the product. In support of
this position, counsel cites the following rulings: Headquarters
Ruling Letter (HRL) 953686, dated May 14, 1993, New York Ruling
Letter 872016, dated March 31, 1992, HRL 089957, dated November
14, 1991, HRL 087038, dated August 7, 1990 and HRL 087923, dated
December 19, 1990.
In the cases cited above, essential character was determined
by looking at the factors set out in the ENs to GRI 3(b) and
examining the specific products at issue. For example, in HRL
953686 we stated the following:
The fa ctors which determine essential character of an article will vary from case to case. It may be the nature of the materials or components, its bulk, quantity, weigh t, value, of the role a material plays in relation to the use of the goods. In general, essential character has been construed to mean the attribute which strongly marks or serves to distinguish what an article is; that which is indistinguishable to the structure or condition of an article.
After examining styles 8024, 8026 and 2117D, we have
determined that it is the flower portion of these articles that
provides their essential character. The flowers give these
products their unique quality and they serve to make them
distinctive. The leaves and the floral tape-covered wire serve
"the subordinate role of embellishing the beauty of the principal
object", the flower. See, HRL 087923.
The essential character of style 8031, the Persicaria spray,
is not as readily apparent as with the other styles of flowers.
This style is made of a combination of four small clusters of
pink and purple berries interspersed with 22 leaves. As a
result, the berries are less prominent and the visual impact
imparted equally conveys the impression of foliage and berries.
In addition, though the value of the competing materials alone
will not determine the essential character, we note that the
value of the leaves is greater than that of the berries. This is
unlike the above styles, where the value of the petals and their
backings is greater than that of the leaves. Therefore, it is
our position that as neither the berries or the foliage clearly
imparts the spray's essential character, classification of this
style is determined according to GRI 3(c).
GRI 3(c) provides the following:
(c) When goods cannot be classified by reference to 3(a) or 3(b), they shall be classified under
the heading which occurs last in numerical order among
those which equally merit consideration.
The competing provisions for this article are subheading
6702.10.2000, HTSUS, and 6702.90.6500, HTSUS. Based on GRI 3(c),
style 8031 would be classified in subheading in subheading
6702.90.6500, HTSUS.
Finally, we note that NYRL 872016, HRLs 953686, 089957,
087038 and 087923, did determine that the essential characters of
the articles were represented by the flower portions. However,
there is nothing in these rulings that require, in every case,
that the determination of essential character be based on the
flower portion. These rulings, while they may provide us with
guidance on this issue, are not dispositive of the general issue
of the determination of essential character of artificial flowers
when they are combined with foliage and other materials.
Therefore, we are not inclined to state that the flower portion
of artificial flowers and artificial flower and foliage
combinations should always determine their essential character.
HOLDING:
Styles 8024, 8026 and 2117D are classifiable in subheading
6702.90.3500, HTSUS. Style 8031 is classifiable in subheading
6702.90.6500, HTSUS.
This decision should be mailed by your office to the
internal advice requester no later than 60 days from the date of
this letter. On that date the Office of Regulations and Rulings
will take steps to make the decision available to Customs
personnel via the Customs Rulings Module in the ACS and the
public via the Diskette Subscription Service, Lexis, Freedom of
Information Act and other public access channels.
Sincerely,
John Durant, Director
Commercial Rulings Division