CLA-2 CO:R:C:G 087998 WAW
Ms. Judy Kearney
Network Brokers International, Inc.
Airport Industrial Office Park, Building A2-C
145th Avenue & Hook Creek Blvd.
Valley Stream, N.Y. 11581
RE: Reconsideration and Revocation of Headquarters Ruling Letter
(HRL) 086692; Decorative fabric rose leaf; artificial
flowers and foliage of man-made fibers
Dear Ms. Kearney:
This letter is to inform you that we are revoking HRL
086692, dated April 18, 1990, which was issued to you. Since the
issuance of this ruling, Congress has passed the "Customs and
Trade Act of 1990," Pub. L. No. 101-382. Several tariff
provisions of the Harmonized Tariff Schedule of the United
States (HTSUSA) were amended by this Trade Act. Specifically,
one of the amendments included in the Trade Act concerns the
classification of imports of artificial foliage under the HTS.
Upon review and reconsideration of the recent enactment of this
Act, we have determined that it is necessary to revoke HRL 086692
to reflect the changes made in the tariff.
FACTS:
The instant merchandise is described as a decorative fabric
rose leaf made of 100 percent polyester taffeta material. The
decorative leaf is designed to be used with decorative bows to
create a simulated flower arrangement. The artificial leaves
will be manufactured in and imported from Korea. A sample of the
article was submitted along with your original ruling request.
ISSUE:
Whether the provision for "artificial flowers, of man-made
fibers," in subheading 6702.90.4000, HTSUSA, includes artificial
foliage without blooms or flower buds, or whether such foliage is
more properly classifiable as "other" in subheading 6702.90.6000,
HTSUSA.
LAW AND ANALYSIS:
The General Rules of Interpretation (GRI's) set forth the
manner in which merchandise is to be classified under the HTSUSA.
GRI 1 requires that classification be determined first according
to the terms of the headings of the tariff and any relative
section or chapter notes and, unless otherwise required,
according to the remaining GRI's, taken in order. GRI 6 states
that for legal purposes, classification is determined according
to the terms of the subheadings and related subheading notes and,
mutatis mutandis, to the GRI's, on the understanding that only
subheadings at the same level are comparable.
Prior to enactment of the Customs and Trade Act, the
relevant provisions of the HTSUSA which cover artificial flowers
and foliage were the following:
6702 Artificial flowers, foliage and fruit and
parts thereof; articles made of artificial
flowers, foliage or fruit:
6702.10 Of plastics
Assembled by binding with
flexible materials such
as wire, paper, textile
materials, or foil, or by
gluing or by similar
methods
* * *
6702.90 Of other materials:
6702.90.1000 Of feathers
Other:
6702.90.4000 Artificial flowers, of
man-made fibers
6702.90.6000 Other
The issue that we are asked to address in this
reconsideration is, in view of the amendment to subheading
6702.90.40, HTSUSA, made in the Customs and Trade Act of 1990,
whether the provision for "artificial flowers, of man-made
fibers," in subheading 6702.90.4000, HTSUSA, now includes
artificial foliage without blooms or flower buds, or whether such
foliage remains classified as "other" in subheading 6702.90.6000,
HTSUSA,
In HRL 086692, dated April 18, 1990, a decorative fabric
rose leaf consisting of 100 percent polyester taffeta was
classified under subheading 6702.90.6000, HTSUSA, which provides
for artificial flowers, foliage and fruit and parts thereof, of
other materials, other, with a duty rate of 17 percent ad
valorem. At the time we issued this ruling it was our position
that artificial foliage was properly classified under subheading
6702.90.6000, HTSUSA, based on the reasons set forth below.
In applying the HTSUSA, the Customs Service is obligated to
follow the terms of the statute. The superior heading 6702,
HTSUSA, is divided into two separate sections; the first section
covers "artificial flowers, foliage and fruits and parts thereof"
and the second section covers "articles made of artificial
flowers, foliage, or fruit." Subheading 6702.90.4000, HTSUSA, is
limited to artificial flowers, foliage and fruit and parts
thereof. . . of other materials, other: artificial flowers, of
man-made fibers. The competing subheading at this level is
6702.90.6000, HTSUSA, which provides for artificial flowers,
foliage and fruit and parts thereof. . . of other materials (than
plastic), other (than feathers), other (than artificial flowers,
of man-made fibers). Had no distinction between artificial
flowers and the other articles enumerated in heading 6702 been
intended, we can assign no reason why "artificial flowers" alone
is mentioned in subheading 6704.90.4000, HTSUSA. The fact that
the artificial foliage was specifically included in the superior
heading and not in the subheading means that it was the intent of
the drafters of the nomenclature to exclude artificial foliage
from the "artificial flowers, of man-made fibers" subheading.
Accordingly, in HRL 086692 we determined that artificial foliage
of man-made fibers should be classified in subheading
6702.90.6000, HTSUSA, dutiable at 17 percent ad valorem.
Since the issuance of this ruling letter, however, Congress
passed the "Customs and Trade Act of 1990." This Act was signed
into law by the President on August 20, 1990 and took effect on
October 1, 1990. Included in the Trade Act was an amendment to
subheading 6702.90.4000 of the HTS. Prior to enactment of this
legislation, in an effort to ensure uniform treatment for all
importers of artificial flowers and foliage, the various customs
ports were instructed to withhold liquidation on all entries
with regard to artificial flowers and foliage until a final
determination is made by this office.
Under the Tariff Schedules of the United States (TSUSA),
Customs had a practice of classifying foliage-type artificial
flowers, including foliage without buds or blooms, in chief value
of man-made fibers, under the same TSUSA heading, as imports of
artificial flowers, subject to the same nine percent ad valorem
duty rate. In the course of converting the TSUSA to the HTS,
efforts were made to avoid tariff rate changes to the extent
practicable and to simplify the tariff where possible without
rate changes significant for United States trade. Because of an
inadvertent change in the conversion of the HTS, however, Customs
was classifying imports of artificial foliage under an HTS
subheading which was subject to a duty rate of 17 percent ad
valorem. To restore the tariff treatment of foliage-type
artificial flowers of man-made fibers to the previous duty
treatment under the TSUSA, this subheading was amended by
Congress in Section 479C of the Customs and Trade Act of 1990.
Section 479C of the Customs and Trade Act of 1990, states
the following:
Subheading 6702.90.40 is amended by striking out
"Artificial flowers, of" in the article description and
inserting in lieu thereof "Of".
In view of the above amendment to subheading 6702.90.40,
HTSUSA, the tariff schedule now reads as follows:
* * *
Other:
6702.90.40 Of man-made fibers
6702.90.60 Other
* * *
Subheading 6702.90.40, HTSUSA, as amended, now includes
artificial flowers, foliage and fruit and parts thereof of man-
made fibers. Artificial flowers, foliage, and fruit and parts
thereof which consist of other than plastics, other than feathers
and other than man-made fibers are now classified in the basket
provision of Heading 6702 under subheading 6702.90.6000, HTSUSA.
Furthermore, according to Section 485 of the Customs and
Trade Act of 1990, this amendment is to apply with respect to
articles entered, or withdrawn from warehouse for consumption on
or after October 1, 1990. Until October 1, 1990, artificial
foliage of man-made fibers continued to be classified pursuant to
HRL 086692 in subheading 6702.90.60, HTSUSA. On October 1, 1990
and thereafter, both flowers and foliage, of man-made fibers,
are to be classifiable in subheading 6702.90.40, HTSUSA, based on
the above amemdment to the tariff schedule. Accordingly, until
October 1, 1990, entries of artificial foliage continued to be
classified, in conformity with HRL 086692, under subheading
6702.90.60, HTSUSA, and duties deposited, with liquidation
suspended.
The Customs and Trade Act also provides for the retroactive
liquidation and reliquidation of entries of artificial foliage.
Section 485 of the Act states the following:
(1) Notwithstanding section 514 of the Tariff Act of
1930 or any other provision of law, upon proper request
filed with the appropriate customs officer after
September 30, 1990, and before April 1, 1990, any
entry--
(A) which was made after the applicable date
and before October 1, 1990, and
(B) with respect to which there would have
been no duty, or a lesser duty, if any
amendment made by section . . .479C. . . .
applied to such entry,
shall be liquidated or reliquidated as though such
amendment applied to such entry.
The term "upon request filed with the appropriate Customs
officer" means that a written request must be submitted to the
District, Area or Port Director at the location where the entry
was filed. The request should state that the liquidation or
reliquidation is being requested under the provisions of the
Customs and Trade Act of 1990. The entry number(s) of the entry
or entries for which liquidation or reliquidation is being
requested must be identified so that Customs may retrieve the
proper documents. A request for liquidation or reliquidation may
list more than one entry number provided that the issue on each
entry is identical. It is not necessary that a separate request
be filed for each entry. Requests may be submitted after
September 30, 1990 and before April 1, 1991.
HOLDING:
Pursuant to Section 177.9(d) of the Customs Regulations (19
CFR 177.9(d)), Headquarters Ruling Letter 086692, which
classified a decorative fabric rose leaf under subheading
6702.90.6000, HTSUSA, is hereby revoked. Based on Section 479C
of the Customs and Trade Act of 1990, the subject merchandise
should be classified under subheading 6702.90.4000, HTSUSA.
Articles classified under this provision are subject to a duty
rate of 9 percent ad valorem.
The effective date of this tariff change with respect to
articles entered or withdrawn from warehouse for consumption is
October 1, 1990. A copy of this ruling letter should be
attached to the entry documents filed at the time this type of
merchandise is imported.
Sincerely,
John Durant, Director
Commercial Rulings Division