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HQ 958675




September 24, 1998

CLA-2 RR:CR:GC 958675 NLP/JGB

CATEGORY: CLASSIFICATION

TARIFF NO: 6702.90.6500

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

RE: Application for further review of protest no. 5501-95-100193; Chapters 47 and 48; Legal Note 1 (f) to Chapter 48; ENs to Chapter 47 and 48; Heading 6702; HRLs 955578, 954226 and 958050

Dear Sir:

This is a decision on application for further review of protest no. 5501-95-100193, filed on May 10, 1995, by Horton, Whiteley & Cooper, on behalf of their client, Designer Accents, Inc., against the former District Director's decision concerning the classification of various artificial flowers, fruit and foliage, made in Thailand, under the Harmonized Tariff Schedule of the United States (HTSUS).

FACTS:

Upon liquidation, the artificial flowers, fruit and foliage 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 protestant's position that the artificial flowers, fruit and foliage at issue obtain their essential character from their plastic portions. Therefore, the subject articles are classifiable 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."

The first artificial flower is referred to as a "shiny medium poinsettia", style number RG 88203/E. This article is made up of 1 flower that is comprised of 11 petals, 1 stem and 2 leaves. Technically, a poinsettia 's colorful "petals" are bracts or modified leaves; but, for the purposes of this ruling, they are referred to as flowers and/or petals. The poinsettia's flower petals and leaves are composed of natural cellulosic nonwoven nontextile vegetable fibers and are coated with plastic. The Customs Service laboratory determined that the flower petals have the following thickness:
plastic coating - 0.1125 millimeters (23%) paper - 0.3875 millimeters (77%)

According to the protestant's submission, the cost/weight breakdowns for the components of this flower are as follows:

Cost Weight
(in cents) (in grams)

Petals .11 18
Center .02 2.5
Leaves .04 5
Floral tape and stem .26 22.10

The second artificial flower is referred to as a poinsettia spray with pomegranates, style number RG 99399/J. The spray is composed of flowers and leaves made of natural cellulosic nonwoven nontextile vegetable fibers and are coated with plastic. The pomegranates are made of styrofoam coated with urethane. The Customs Service Laboratory determined that the flower petals have the following thickness:
plastic coating - 0.125 millimeters (15%) paper - 0.725 millimeters (85%)

According to the protestant's submission, the cost/weight breakdowns for the product's components are as follows:

Cost Weight
(in cents) (in grams)

Petals .24 23
Center .12 4
Pomegranates .23 37
Leaves .19 36.14
Floral tape and stem .72 37.50

ISSUE:

What is the tariff classification of the shiny medium poinsettia and the poinsettia/pomegranate spray?

LAW AND ANALYSIS:

Classification of goods under the HTSUS is governed by the General Rules of Interpretation (GRIs). 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 instant products are comprised of several components (flowers and leaves and/or fruit) and different materials (styrofoam, plastic coating and paper), there in no one subheading within heading 6702, HTSUS, that specifically describes this merchandise. 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 at issue 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. 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.

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.

Style RG 88203/E- SHINY MEDIUM POINSETTIA

Protestant claims that the poinsettia obtains its essential character from the plastic coated flowers. The plastic coating provides the shiny essence and visual focal point of the product. Therefore, the product should be classified as "of plastic" under subheading 6702.10.2000, HTSUS.

In Headquarters Ruling Letter (HQ) 955578, dated March 23, 1994, Customs dealt with the classification of four types of artificial flowers. The flowers at issue therein were described as a Hollanda iris, a pink rose, a magnolia and a persicaria spray composed of small groupings of berries and surrounded by leaves. In determining that the flower portions of the first three articles represented their essential characters, we stated the following:

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.

In the instant case, we have also determined that it is the flower portion of the poinsettia that provides its essential character.

The Customs laboratory analyzed the poinsettia and determined that the flower petals are composed of natural cellulosic nonwoven nontextile vegetable fibers and are coated with plastic. Chapter 48, HTSUS, provides for "[p]aper and paperboard; articles of paper pulp, of paper or of paperboard." The ENs to Chapter 48, state that: "[p]aper consists essentially of the cellulosic fibers of Chapter 47 felted together in sheet form." The ENs to Chapter 47 state that the pulp of this chapter consists essentially of cellulose fibers obtained from various vegetable materials, or from waste textiles of vegetable origin. As the base material of the petals is made of a sheet of cellulosic vegetable fibers of Chapter 47, the base material of the petals can be considered to be made of paper. Therefore, the Legal Notes to Chapter 48 are applicable in determining whether the petals are comprised of paper or plastics for HTSUS classification purposes.

Legal 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 flower petal constitutes more than half its total thickness, then it would be considered to be made of plastic and the flower would be classifiable in subheading 6702.10.2000, HTSUS. If the plastic coating is less than half the total thickness of the flower petal, then it would be considered to be made of paper and the flower would be classifiable in subheading 6702.90.6500, HTSUS.

The laboratory analysis determined that the plastic coating comprised 23% of the thickness of the petal. As a result of this analysis, it is our position that the flower petal would be considered to be of paper and the poinsettia is classifiable in subheading 6702.90.6500, HTSUS. See, HQ 954226, dated December 29, 1993, wherein Customs 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 6702.90.6500, HTSUS.

STYLE RG 99399/J-POINSETTIA SPRAY WITH POMEGRANATE

Protestant claims that the essential character of this product is imparted by the plastic pomegranate fruit. Counsel states that this is supported by recent decisions wherein numerous products, including the pomegranate spray x 3, item no. DA 110, were held to have their essential character imparted by the fruit portion.

In the instant case, it is our position that the essential character of the spray is not readily apparent. Based on a photograph of this article, it appears to be a combination of approximately 14 pomegranates interspersed with approximately 15 leaves and 16 poinsettias on a stem. While the fruit is visible and distinctive so are the flowers and leaves. The flowers and leaves play more than a subordinate role in embellishing the fruit. As a result, the fruit is less prominent and the visual impact imparted equally conveys the impression of foliage (leaves and flowers) and fruit.

Therefore, as neither the fruit, the flowers or the leaves clearly impart the spray's essential character, classification of this product 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 RG 99399/J would be classified in subheading 6702.90.6500, HTSUS. See, HQ 955578, wherein the persicaria spray was classified in subheading 6702.90.6500, HTSUS, based on GRI 3(c). This item was comprised of four small clusters of pink and purple berries interspersed with 22 leaves. Customs determined that the berries were less prominent and the visual impact imparted equally conveyed the impression of foliage and berries.

We note that in recent decisions we have classified a variety of artificial flower products consisting of various combinations of fruits and/or flowers and/or leaves. Specifically, in HQ 958050, dated March 26, 1996, certain artificial flower products were held to have their essential character imparted by the fruit portion when the fruit gave "each product their distinctive quality and they serve[d] to make them distinctive." In these products, we determined that the leaves served "the subordinate role of embellishing the beauty of the principal object." As we have stated above, based on our examination of the product at issue, the leaves and flowers play more than a subordinate role and serve to make the fruit less prominent in the spray. Therefore, the essential character of this article is not apparent and we are classifying the spray pursuant to GRI 3(c).

Moreover, in reviewing the pomegranate spray x 3 that is discussed in the protestant's submission, we note that it is only comprised of fruit and leaves. Therefore, it is likely that the fruit in the pomegranate spray x 3 was more visible and distinctive than the leaves. In the instant case, the spray is comprised of fruit, flowers and leaves. The large amount of flowers and leaves makes the fruit less prominent and distinctive. Second, we note that in comparing the values and weights of the components in the pomegranate spray x 3, the fruit costs comparatively more than the leaves (.19 cents versus .13 cents) and weighs more ( 11 grams versus 8.5 grams). In the instant case, when comparing the cost and weight of the three components, they are somewhat closer to one another. For example, while the flowers cost more than the fruit (.24 cents versus .23 cents), it is only by a small margin. While the leaves weigh less than the fruit (36.14 grams versus 37 grams), it is also only by a small margin. Therefore, the subject spray's cost and weight figures do not as clearly indicate which component provides the product's essential character as do the figures for the pomegranate spray, item no. DA 110.

HOLDING:

The protest should be denied. The shiny medium poinsettia, style number RG 88203/E, and the poinsettia spray with pomegranates, style number RG 99399/J, are classifiable under subheading 6702.90.6500, HTSUS. We note that artificial flowers classifiable in this subheading that are made in Thailand are not eligible for preferential treatment with regard to the General System of Preferences. See, General Note 4(c) and (d), HTSUS to the General System of Preferences. See, General Note 4(c) and (d), HTSUS

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, Freedom of Information Act and other public access channels.

Sincerely,

John Durant, Director
Commercial Rulings Division

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