CLA-2 RR:CR:GC 959719 DWS
Mr. Stuart D. Schmidt
Emery Customs Brokers
6940C Engle Road
Middleburg Heights, OH 44130
RE: Flower Stickers; Explanatory Notes 39.19 and 3(b)(VIII);
Composite Goods;
GRI 3(b); 3919.90.50
Dear Mr. Schmidt:
This is in response to your letter of June 26, 1996, on
behalf of Berea Hardwood Co., to the Port Director of Customs,
Cleveland, Ohio, concerning the classification of dried flower
stickers under the Harmonized Tariff Schedule of the United
States (HTSUS). Your letter was forwarded to this office for a
reply. We regret the delay in our response.
FACTS:
The merchandise consists of flower stickers, each sticker
comprised of a dried, pressed flower blossom, and vacuum-sealed
between two round or oval shaped discs of clear plastic. The
discs are backed with an adhesive and are mounted on a plastic
card. Nine different flower stickers are mounted on the sample
card. The stickers will be used as decorative items for cards,
gifts, etc. Based upon the submitted component material
breakdowns of each sticker, the flower comprises approximately
27% of the weight and 50% of the value, the plastic discs
comprise approximately 27% of the weight and 25% of the value,
and the plastic mounting card comprises approximately 45% of the
weight and 25% of the value.
ISSUE:
Whether the flower stickers are classifiable under
subheading 1404.90.00, HTSUS, as other vegetable products not
elsewhere specified or included, or under subheading 3919.90.50, HTSUS, as other self-adhesive plates,
sheets, film, foil, tape, strip and other flat shapes, of
plastics and whether or not in rolls.
LAW AND ANALYSIS:
Classification of merchandise under the HTSUS is in
accordance with the General Rules of Interpretation (GRI's). GRI
1 provides that classification is determined according to the
terms of the headings and any relative section or chapter notes.
The HTSUS provisions under consideration are as follows:
1404.90.00: [v]egetable products not elsewhere specified or
included: [o]ther.
Goods classifiable under this provision receive duty-free
treatment.
3919.90.50: [s]elf-adhesive plates, sheets, film, foil,
tape, strip and other flat
shapes, of plastics, whether or not in rolls:
[o]ther: [o]ther.
The general, column one rate of duty for goods classifiable
under this provision
is 5.8 percent ad valorem.
It has been suggested that the flower stickers are described
under subheading 3919.90.50, HTSUS, and, based upon GRI 1, they
are so classifiable. In understanding the language of the HTSUS,
the Harmonized Commodity Description and Coding System
Explanatory Notes may be utilized. The Explanatory Notes,
although not dispositive or legally binding, provide a commentary
on the scope of each heading of the HTSUS, and are generally
indicative of the proper interpretation of these headings. See
T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
Explanatory Note 39.19 (p. 617) states that:
[t]his heading covers all self-adhesive flat shapes of
plastics, whether or not in
rolls, other than floor, wall or ceiling coverings of
heading 39.18. The heading
is, however, limited to flat shapes which are pressure-sensitive, i.e., which at
room temperature, without wetting or other addition, are
permanently tacky (on
one or both sides) and which firmly adhere to a variety of
dissimilar surfaces
upon mere contact, without the need for more than finger or
hand pressure.
It should be noted that this heading includes articles
printed with motifs,
characters or pictorial representations, which are not
merely incidental to the
primary use of the goods (see Note 2 to Section VII).
It appears that the plastic disc components of the flower
stickers are classifiable under heading 3919, HTSUS. However, it
is our position that the heading does not describe the entire
flower sticker. Although the heading allows for articles printed
with certain representations, it states nothing concerning
articles such as the flower stickers, consisting of real dried
flowers vacuum-sealed in between two plastic discs. Based upon a
GRI 1 analysis, the flower stickers are beyond the scope of
heading 3919, HTSUS, and are precluded from classification
therein.
As there is no HTSUS heading which covers all of the
components of the flower stickers, it is necessary to resort to
GRI 3. It states that:
[w]hen, 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:
(a) The heading which provides the most specific description
shall be preferred
to headings providing a more general description.
However, when two or
more headings each refer to part only of the materials
or substances
contained in mixed or composite goods or to part only
of the items in a set
put up for retail sale, those headings are to be
regarded as equally specific
in relation to those goods, even if one of them gives
a more complete or
precise description of the goods.
(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.
(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.
Headings in chapters 14 and 39, HTSUS, each refer to part
only of the components of the flower stickers. Accordingly, no
HTSUS heading provides a specific description of the flower
stickers. Therefore, we must refer to GRI 3(b).
Because, based upon GRI 3(b), the components of the flowers
stickers constitute composite goods, they are classifiable as if
consisting of the component which gives the flower stickers their
essential character.
Explanatory Note 3(b)(VIII) (p. 4) states that:
[t]he 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 our position that the dried flower imparts the
essential character of the flower stickers, in that it plays a
primary role in the use of the stickers. Although the other
components are important to the use of the stickers, it is the
flowers which will draw a customer to purchase the stickers and
use them on gifts, cards, etc. Therefore, the flower stickers
are classifiable under subheading 1404.90.00, HTSUS.
HOLDING:
In accordance with GRI 3(b), the flower stickers constitute
composite goods, and are classifiable under subheading
1404.90.00, HTSUS, as other vegetable products not elsewhere
specified or included.
Sincerely,
John Durant, Director
Commercial Rulings Division