CLA-2 RR:TC:FC 958241 RC
Port Director of Customs
Port of New York
c/o Chief, Residual Liquidation and Protest Branch
6 World Trade Center, Room 761
New York, New York 10048-0945
RE: Decision on Application for Further Review of Protest No.
1001-95-108765, filed October 13, 1995, concerning the
classification of poinsettia sprays and swags
Dear Sir:
This is a decision on a protest timely filed October 13,
1995, against your decision in the classification under the
Harmonized Tariff Schedule of the United States Annotated
(HTSUSA) of articles entered in April 1995 and liquidated in
August 11, 1995, consisting of poinsettia sprays and swags.
FACTS:
The poinsettia sprays and swags are made of silk leaves.
The stems and branches and branches are plastic. The protestant
claims that the articles fall into subheading 9505.10.5020,
HTSUSA, as festive articles, articles for Christmas festivities,
other than Christmas ornaments or nativity scenes, free of duty
(1995). You classified the articles in subheading 6702.90.3500,
HTSUSA, as artificial flowers, foliage dutiable at 9 percent ad
valorem (1995).
ISSUE:
Whether the poinsettia sprays and swags fall into heading
6702, HTSUSA, as artificial flowers, foliage, or in heading 9505,
HTSUSA, as festive articles.
LAW AND ANALYSIS:
Classification under the HTSUSA is made in accordance with
the General Rules of Interpretation (GRIs). The systematic
detail of the harmonized system is such that virtually all
goods are classified by application of GRI 1, that is, 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 may then be applied.
GRI 2(a) states in pertinent part that:
Any reference in a heading to an article shall be taken to
include a reference to that article incomplete or
unfinished, provided that, as entered, the incomplete or
unfinished article has the essential character of the
complete or finished article. It shall also include a
reference to that article complete or finished (or falling
to be classified as complete or finished by virtue of this
rule), entered unassembled or disassembled.
Heading 6702, HTSUSA, provides for "[a]rtificial flowers,
foliage and fruit and parts thereof, articles made of artificial
flowers, foliage or fruit." The Explanatory Notes, which
represent the official interpretation of the tariff at the
international level, offer guidance in understanding the scope of
the headings. The Explanatory Note to heading 6702 indicates
that the heading covers:
(1) Artificial flowers, foliage and fruit in forms
resembling the natural products, made by
assembling various parts (by binding, glueing,
assembling by fitting into one another or similar
methods). This category also includes
conventional representations of flowers, foliage
or fruit made up in the manner of artificial
flowers, etc.
(2) Parts of artificial flowers, foliage or fruit
(e.g., pistils, stamens, ovaries, petals, calyces,
leaves, and stems).
(3) Articles made up 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.
The Note further indicates that this heading does not
include:
(g) Articles clearly identifiable as toys or carnival
articles (Chapter 95).
Heading 9505, HTSUSA, provides, in pertinent part, for
"[f]estive, carnival or other entertainment articles." The
Explanatory Note to heading 9505 indicates that this heading
covers:
(A) Festive, carnival or other entertainment articles
which in view of their intended use are generally
made of non-durable material. They include:
(1) Decorations such as festoons, garlands, Chinese
lanterns, etc., as well as various decorative
articles made of paper, metal foil, glass fibre,
etc., for Christmas trees (e.g., tinsel, stars,
icicles), artificial snow, coloured balls, bells,
lanterns, etc. Cake and other decorations (e.g.,
animals, flags) which are traditionally associated
with a particular festival are also classified
here.
(2) Articles traditionally used at Christmas
festivities, e.g., artificial Christmas trees
(these are sometimes of the folding type),
nativity scenes, Christmas crackers, Christmas
stockings, imitation yule logs.
Customs interprets the language of heading 9505, HTSUSA, as
requiring that goods classifiable thereunder serve a traditional
role in the Christmas holiday; goods simply decorated with
poinsettia flowers or such motifs are not classifiable as festive
articles under heading 9505, HTSUSA.
The protestant suggests that poinsettia flowers are prima
facie classifiable in heading 9505, HTSUSA, as festive articles,
that they retain their decorative nature even when incorporated
with other articles.
We disagree. Artificial poinsettia flowers are not prima
facie classifiable in Chapter 95, as festive articles. Customs
has stated in numerous rulings "that picks, sprigs, sprays,
swags, branches, -- incomplete articles -- no matter what they
are made of or what flower they represent, are all classifiable
in Chapter 67 -- the only exception being mistletoe sprays which
are classifiable in 9505.10." See, HRL 950999, dated April 16,
1992. In those instances, the words "incomplete articles"
pertain to the possibility that the poinsettia sprays or swags
may actually be used to make festive articles if they were to be
incorporated into decorations traditionally used at Christmas.
The protestant claims that the poinsettia sprays and swags are
incomplete articles as contemplated by GRI 2(a) suggesting that
because they consist of poinsettia flowers they can only be
finished as festive articles. The protestant assumes that the
artificial poinsettias would necessarily impart the essential
character of any complete article incorporating the poinsettia
flowers. The protestant' s comments that sprays and swags are
always incomplete articles is incorrect and cites the language of
the Customs rulings out of context.
As imported, the sprays and swags are not shaped or designed
as ornamentation appropriate for use in connection with a
recognized festive holiday. Furthermore, they may just as likely
be used to decorate functional articles that do not fall into
Chapter 95, articles that may impart the essential character of
the "finished" article.
Customs has ruled that the following complete articles
consisting of poinsettia flowers are traditionally associated
with the festival of Christmas, falling into Chapter 95:
wreaths, centerpieces, and garland. See, HRL 089320, dated
September 13, 1991. In that ruling, a poinsettia spray was held
not classifiable in heading 9505. With respect to whether the
articles fell into Chapter 95, Customs stated:
. . . the article to which the imported item is to be
attached must itself be classifiable as a festive
article. This is not the case here. The (poinsettia)
spray . . . will most likely be attached to baskets,
pots, wicker rings, and styrofoam bases -articles
themselves not classifiable as festive articles under
the HTSUSA. Accordingly, the (poinsettia) spray . . .
[is] more properly classifiable in heading 6702,
HTSUSA, the provision for artificial flowers and
foliage. The applicable subheading is 6702.90.35,
HTSUSA, which provides for artificial flowers and
foliage and parts thereof, of man-made fibers.
We find that the subject poinsettia sprays and swags, as
imported, are similar to the sprays in HRL 089320. They are
prima facie classifiable, by application of GRI 1, in their
imported condition, in heading 6702, HTSUSA, as artificial
foliage. Therefore GRI 2(a) does not apply.
HOLDING:
The poinsettia swags are classifiable in subheading
6702.90.3500, HTSUSA, which provides for artificial flowers,
foliage and parts thereof: of other materials (other than
plastics): other: of man-made fibers. The applicable rate of
duty is 9 percent ad valorem (1994).
You are instructed to deny the protest in full. A copy of
this decision should be attached to the Form 19 to be returned to
the protestant.
In accordance with Section 3A(11)(b) of Customs Directive
099 3550-065, dated August 4, 1993, Subject: Revised Protest
Directive, this decision should be mailed by your office to the
protestant no later than 60 days from the date of this letter.
Any reliquidation of the entries in accordance with the decision
must be accomplished prior to mailing of the decision. Sixty
days from the date of the decision, the Office of Regulations and
Rulings will take steps to make the decision available to Customs
personnel via the Customs Rulings Module in ACS, and to the
public via the Diskette Subscription Service, the Freedom of
Information Act, and other public access channels.
Sincerely,
John Durant, Director
Tariff Classification
Appeals Division