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HQ 955578





March 23, 1994

CLA-2 CO:R:C:T 955578 NLP

CATEGORY: CLASSIFICATION

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


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