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HQ 958241




May 30, 1996

CLA-2 RR:TC:FC 958241 RC

CATEGORY: CLASSIFICATION

TARIFF NO.: 6702.90.3500

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

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