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HQ 958749




May 3, 1996

CLA-2 RR:TC:MM 958749 MMC

CATEGORY: CLASSIFICATION

TARIFF NO.:6702.90.65

Port Director
U.S. Customs Service
PO Box 619050
DFW Airport, TX 75261

RE: Protest 5501-95-100272; artificial flowers; HRLs 955578, 954226; Chapter 48 Note 1(f)

Dear Port Director:

The following is our response to Protest 5501-95-100272 concerning your actions in classifying and assessing duty on artifical flowers, under the Harmonized Tariff Schedule of the United States (HTSUS).

FACTS:

The artificial flower is referred to as a " shinny magnolia" style number RL 40111/F.
Customs laboratory report 5-96-10175-001 dated November 9, 1995, indicates that the flower is composed of paper coated with latex rubber and plastic petals are composed of 2.89 millimeters (mm) of paper, 2.92mm of rubber and 1.17mm of plastic.

Protestant entered the artifical flowers under subheading 6702.90.35, HTSUS. The entries were liquidated on April 7, 1995, under subheading 6702.90.65, HTSUS. A protest was timely filed on June 12, 1995. The subheadings under consideration are as follows:

6702.10.20 Artificial 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.........................................................................8.4%

6702.90.35 Artificial flowers, foliage and fruit and parts thereof; articles made of artificial flowers, foliage or fruit: of other materials: other: of man-made fibers..................................................................................................9%

6702.90.65 Artificial flowers, foliage and fruit and parts thereof; articles made of artificial flowers, foliage or fruit: of other materials: other: other.........17%

ISSUE:

Under which provision are the artificial flowers classifiable?

LAW AND ANALYSIS:

The classification of merchandise under the HTSUS is governed by the General Rules of Interpretation (GRI's). GRI 1, HTSUS, states, in pertinent part, that for legal purposes, classification shall be determined according to the terms of the headings and any relative section or chapter notes. GRI 6 provides that for legal purposes, the classification of goods in the subheadings of a heading shall be determined according to the terms of those subheadings and any related subheading notes and, mutatis mutandis, to the above rules, on the understanding that only subheadings at the same level are comparable. For the purposes of this rule, the relative section, chapter and subchapter notes also apply, unless the context otherwise requires.

Heading 6702, HTSUS, provides for artificial flowers, foliage and fruit and parts thereof; articles made of artificial flowers, foliage or fruit. The articles at issue here are classifiable within this heading. However, as they are comprised of several materials (plastic, rubber and paper), there in no one subheading within heading 6702, HTSUS, that specifically describes them and therefore, classification cannot be pursuant to GRI 1. We thus look to GRI 2(b), which states in pertinent part that:

The classification of goods consisting of more than one material or substance shall be according to the principles of rule 3.

As the articles consist of more than one material or substance and are prima facie classifiable within two or more subheadings within heading 6702, HTSUS, GRI 3 is applicable.

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 Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System may be utilized. The ENs, although not dispositive, or legally binding, provide a commentary on the scope of each heading, and are generally indicative of the proper interpretation of the HTSUS. See, T.D. 89-90, 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.

Protestant claims the subject artificial flower obtains its essential character from the petals. These in turn obtain their character from the plastic component. The plastic provides the shiny essence and visual focal point of the product. Therefore, the product should be classified as "of plastic" under subheading 6702.10.20, HTSUS. We agree that the flower obtains its essential character from the petals.

Customs laboratory analysis indicates that the petals are composed of paper and are coated with a rubber/plastic resin. Chapter 48, HTSUS, provides for paper and paperboard; articles of paper pulp, of paper or of paperboard. Note 1(f) to Chapter 48, HTSUS, states that this chapter does not cover:

(f) Paper-reinforced stratified sheeting of plastics, or one layer of paper or paperboard coated or covered with a layer of plastics, the latter constituting more than half the total thickness, or articles of such materials, other than wall coverings of heading 4814 (chapter 39).

Accordingly, if the plastic coating on the petals is more than half their total thickness, the petals are not considered to be made of paper and therefore not classifiable under subheading 6702.10.20, HTSUS. If the plastic coating is less than half the total thickness of the petals, the petals would be considered either rubber or paper depending upon which material constitutes the greatest thickness of the petal. See, HRL 954226, dated December 29, 1993, wherein we dealt with the classification of, inter alia, one flower petal that was composed of paper (which in turn was made up of vegetable fibers) that was coated with plastic. The lab analyzed this petal and determined that the plastic measured less than half of the total thickness of the petal. Based on Legal Note 1(f) to Chapter 48, HTSUS, the petal was considered to be made of paper and was classified in subheading 6702.90.65, HTSUS.

The laboratory analysis determined that the subject petals measured .698mm thick with .117mm of the thickness from plastic, .292mm from rubber and .289mm from paper. The plastic coating is less than half the total thickness of the petal, therefore it is not classifiable as plastic. The rubber component comprises the greatest thickness of all constituent components. Therefore, it is our position that the petals should be considered rubber for classification purposes and are classifiable under subheading 6702.90.65, HTSUS. HOLDING:

The protest should be DENIED. The artificial flowers are classifiable under subheading 6702. 90.65, HTSUS, which provides for artificial flowers, foliage and fruit and parts thereof; articles made of artificial flowers, foliage or fruit: of other materials: other: other, with a column one duty rate of 17% ad valorem.

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 this decision must be accomplished prior to the mailing of the decision. Sixty days from the date of this 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, Freedom of Information Act and other public access channels.

Sincerely,

John Durant, Director
Tariff Classification and

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