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HQ 958043




December 5, 1995

CLA-2 RR:TC:TE 958043 NLP

CATEGORY: CLASSIFICATION

TARIFF NO.: 6702.10.2000

Port Director
U.S. Customs Service
P.O. Box 619050
DWF Airport, TX 75261

RE: Application for further review of Protest no. 5501-95-100186; subheadings 6702.90.3500 and 6702.90.6500; HRLs 086937 and 956050

Dear Sir:

This a decision on application for further review of protest no. 5501-95-100186, filed on May 3, 1995, by Evans and Wood & Co., Inc., on behalf of Hobby Lobby Stores, Inc., against the [former] District Director's decision concerning the classification of a pumpkin and gourd under the Harmonized Tariff Schedule of the United States (HTSUS). Samples were submitted for our examination.

FACTS:

The samples submitted are a pumpkin and gourd referred to on the commercial invoice as SAF 425, SAF 426 and SAF 338. They are made of styrofoam and are covered with paper which is then painted. A statement on the invoice states that the pumpkin and gourd are comprised of 65% styrofoam, 20% paper and 15% paint.

Upon liquidation, these articles were classified 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."

It is the importer's position that the essential character of the pumpkin and gourd is imparted by the styrofoam component. Therefore, the importer claimed classification of these articles in subheading 6702.10.2000, HTSUS, which provides for "[a]rtificial flowers, foliage and fruit and parts thereof; articles made of artificial flowers, foliage or fruit: [o]f plastics: [a]ssembled by binding with flexible materials such as wire, paper, textile materials, or foil, or by gluing or by similar methods."

ISSUE:

What is the tariff classification of the subject pumpkin and gourd?

LAW AND ANALYSIS:

Classification of goods under the HTSUS is governed by the General Rules of Interpretation (GRI's). GRI 1 provides that classification shall be determined according to the terms of the headings and any relative section or chapter notes. Merchandise that cannot be classified in accordance with GRI 1 is to be classified in accordance with subsequent GRI's 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 articles at issue here are classifiable within this heading. However, as the pumpkin and gourd are comprised of several components (styrofoam, paper and paint), there is no one subheading within heading 6702, HTSUS, that specifically describes this merchandise. As the articles are prima facie classifiable within two or more subheadings within heading 6702, HTSUS, 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 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 Harmonized Commodity Description and Coding System Explanatory Notes (ENs) may be consulted. The ENs, although not dispositive, are to be used to determine the proper interpretation of the HTSUS. See T.D. 89-80, 54 Fed. Reg. 35127, 35128, (August 23, 1989). EN VIII to GRI 3(b), pg. 4, provides an interpretation of the term "essential character" stating 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.

In Headquarters Ruling Letter (HRL) 956050, dated May 26, 1995, Customs dealt with the classification of a scarecrow decorative pick. The pick consisted of two styrofoam balls which comprised the head and body, and it was covered with colored paper, a burlap shirt and hat, and a tie and hair of corn husk material. The figure had black paper facial features, measured approximately six inches in height and sat atop a wooden stick that measured approximately seven inches in length.

Customs determined that the scarecrow pick was classifiable in subheading 3926.40.00, HTSUS, the provision for "Other articles of plastics and articles of other materials of headings 3901 to 3914: Statuettes and other ornamental articles." We determined this classification based on GRI 3(b) and stated the following:

Although covered by paper, burlap, and corn husk materials, the styrofoam comprises the greatest share of the article's bulk, weight, and value, and provides the essential shape upon which the other items are fastened to decorate. Therefore the styrofoam component gives this composite article its essential character.

In the instant case, the styrofoam provides the essential character to the pumpkin and gourd. While the paper does provide aesthetic appeal and marketability to the pumpkins, it is the styrofoam that comprises the greatest share of the bulk, weight and value and it provides the essential shape upon which the paper and paint are placed. Thus, the subject articles are classifiable in subheading 6702.10.2000, HTSUS.

HOLDING:

The pumpkin and gourd are classified in subheading 6702.10.2000, HTSUS. The protest should be approved and a copy of this ruling should be attached to the Customs Form 19 and provided to the protestant as part of the notice of action.

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 entry in accordance with the decision must be accomplished prior to mailing 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 the ACS and the public via the Diskette Subscription Service, Lexis, Freedom of Information Act and other public access channels.

Sincerely,

John Durant, Director
Tariff Classification Appeals Division


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