CLA-2 OT:RR:CTF:TCM H141058 GC
Leslie Zoe Cholula
Customs Compliance Administrator
QVC, Inc.
1200 Wilson Drive
West Chester, Pennsylvania 19380-4262
RE: Reconsideration of NY N131355; Tariff classification of a wreath
Dear Ms. Cholula:
This is in response to your correspondence, dated December 28, 2010, in which you request confirmation of the classification under the Harmonized Tariff Schedule of the United States (HTSUS) of a “Battery Operated Geranium Wreath with Timer” (wreath), which is identified by item number H191071. The wreath was the subject of New York Ruling Letter (NY) N131355, dated November 24, 2010. We have reviewed NY N131355 and find it to be in error. Therefore, this ruling revokes NY N131355.
FACTS:
The wreath at issue was described in NY N131355 as follows:
The front of the wreath consists of textile fabric red and white geraniums and green leaves that are assembled onto plastic stems. The plastic stems are glued onto a cylindrical base that is made of twigs. The twigs are tied together by wire [and are almost completely covered by the artificial geraniums and leaves]. Interspersed throughout the leaves are light emitting diodes (LEDs) that are powered by batteries (not included with the sample) for which there is an attached lidded box that has a timer function.
In your original ruling request, dated November 3, 2010, you stated that 59.2 percent of the cost of the wreath is from the lights, followed by the twig base (21.9 percent), PE (7.8 percent), fabric (7.5 percent), and wire (3.6 percent). No information was submitted regarding the relative weight of the constituent materials.
ISSUES:
Whether the subject wreath is classified as an other article, made directly
to shape from plaiting materials or made up from articles of heading 4601, of heading 4602, HTSUS, artificial flowers, foliage and fruit of heading 6702, HTSUS, or lamps of heading 9405, 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 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 2 through 6 may then be applied in order.
The HTSUS provisions under consideration in this case are as follows:
4602 Basketwork, wickerwork and other articles, made directly to shape from plating materials or made up from articles of heading 4601; articles of loofah:
* * *
6702 Artificial flowers, foliage and fruit and parts thereof; articles made of artificial flowers, foliage and fruit:
* * *
9405 Lamps and lighting fitting including searchlights and spotlights and parts thereof, not elsewhere specified or included; illuminated signs, illuminated nameplates and the like, having a permanently fixed light source, and parts thereof not elsewhere specified or included:
Because the instant wreath is composed of different materials that are prima facie classifiable in different headings (plaiting materials of heading 4602, HTSUS, artificial foliage of heading 6702, HTSUS, and lamps of heading 9405, HTSUS), GRI 3 is implicated. In particular, GRI 3(b) states, in pertinent part:
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.
In understanding the language of the HTSUS, the ENs may be utilized. The ENs, though not dispositive or legally binding, may provide commentary on the scope of each heading of the HTSUS, and are the official interpretation of the Harmonized System at the international level. CBP believes the ENs should always be consulted. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).
In its discussion concerning “essential character,” EN (VIII) to GRI 3(b) states:
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.
Since the subject merchandise is considered a composite good, GRI 3(b) requires that classification be based on the product that provides the product with its essential character. As noted above, EN (VIII) to GRI 3(b) provides that when performing an essential character analysis the factors that should be considered are the bulk, quantity, weight or value, or the role of a constituent material in relation to the use of the goods. There have been several court decisions on "essential character" for purposes of classification under GRI 3(b). See Conair Corp. v. United States, 29 C.I.T. 888 (2005); Structural Industries v. United States, 360 F. Supp. 2d 1330, 1337-1338 (Ct. Int’l Trade 2005); and Home Depot USA, Inc. v. United States, 427 F. Supp. 2d 1278, 1295-1356 (Ct. Int’l Trade 2006), aff’d 491 F.3d 1334 (Fed. Cir. 2007) (Home Depot). "[E]ssential character is that which is indispensable to the structure, core or condition of the article, i.e., what it is." Home Depot USA, 427 F. Supp. 2d at 1293 quoting A.N. Deringer, Inc. v. United States, 66 Cust. Ct. 378, 383 (1971).
In Home Depot, the CIT classified lighting fixtures partly of metal and glass, wood or plastic according to their glass component. In so doing, the court held that the glass component imparted a lighting fixture with its essential character because the component, among other attributes, had greater visible area, weight, contributed to the decorative appearance and structure, and gave the structure its name.
CBP has classified wreaths composed of plaiting material and artificial foliage on a case-by-case analysis based on which material imparts the given wreath with its essential character. See, e.g., New York Ruling Letter (NY) N005692, dated February 16, 2007 and NY H87004, dated January 30, 2002 (classified wreaths in heading 4602, HTSUS); and NY N047158, dated January 15, 2009 and NY B86828, dated July 16, 1997 (classifying wreaths in heading 6702, HTSUS).
Initially, we note that the LEDs interspersed throughout the leaves of the instant wreath account for the majority of the wreath’s cost (59.2 percent). However, none of the other factors mentioned in the EN to GRI 3(b) weigh in favor of finding that the LEDs impart the product with its essential character. For instance, the LEDs account for significantly less bulk, quantity and weight relative to the plaiting materials and the artificial foliage. While the LEDs may add to the decorative appeal of the wreath when powered on, such a complementary role is not sufficient to impart the overall wreath with its essential character. Moreover, the presence or absence of the LEDs does not affect whether the wreath is identifiable as such. Accordingly, we find that the LEDs interspersed throughout the leaves do not impart the instant wreath with its essential character.
The artificial foliage and the plating materials contribute to the decorative appearance of the wreath. However, the plaiting materials cost and weigh more than the artificial foliage. And despite the fact that the artificial foliage covers the majority of the front surface area of the wreath, the plaiting materials are still visible when viewing the wreath. In addition, the plaiting materials provide the wreath with its circular structure, which is essential to its identity as a wreath. The fact that the plaiting materials further the decorative nature of the subject merchandise by making a noticeable contribution to the visual impact of the wreath as a base and backdrop for the colorful artificial foliage and by providing the wreath with its circular structure, we find that it provides the wreath with its essential character. See Home Depot, 427 F. Supp. 2d at 1295-1356 and Headquarters Ruling Letter (HQ) H063640, dated August 3, 2009.
HOLDING:
By application of GRI 3(b), the subject “Battery Operated Geranium Wreath with Timer” (item number H191071) is classified in heading 4602, HTSUS, which provides for: “[b]asketwork, wickerwork and other articles, made directly to shape from plating materials or made up from articles of heading 4601; articles of loofah”. It is specifically provided for under subheading 4602.19.60, HTSUS, which provides for: “[b]asketwork, wickerwork and other articles, made directly to shape from plating materials or made up from articles of heading 4601; articles of loofah: Articles of vegetable materials: Other: Other: Other: Wickerwork”. The column one, general rate of duty for merchandise of subheading 4602.19.60, HTSUS, is Free.
Duty rates 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.
EFFECT ON OTHER RULINGS:
NY N131355, dated November 24, 2010, is hereby REVOKED.
This revocation is not subject to the notice and comment provisions of 19 U.S.C. §1625(c) because NY N131355 has been in effect for less than 60 days.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division