HQ 967906 - Floral Arrangements consisting of live flowers from Canada; NY K87519 Affirmed - United States International Trade Commision Rulings

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HQ 967906

July 14, 2006

CLA-2 RR:CTF:TCM 967906 DSS

CATEGORY: CLASSIFICATION

TARIFF NO.: Various

Ms. Lisa Thomas
PBB Global Logistics
670 Young Street
Tonawanda, NY 14150

RE: Floral Arrangements consisting of live flowers from Canada; NY K87519 Affirmed

Dear Ms. Thomas:

In a letter dated August 19, 2004, on behalf of Hendricks Greenhouses, Inc. (importer), you request reconsideration of New York Ruling Letter (NY) K87519, dated July 20, 2004. The issue is the classification of several floral arrangements consisting of live flowers, which you call “dish gardens,” under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). We have reviewed NY K87519 and determined that the classification is correct for the reasons set forth below.

FACTS:

In NY K87519, we classified five floral arrangements of live plants in decorative containers, which you described as “dish gardens.” We described the articles as follows:

These floral arrangements will consist of live plants, with soil attached to their roots, imported packed in different kinds of planters, as described in the paragraphs below. Photographs (rather than actual samples) of the different floral arrangements were submitted with your inquiry. Samples of the planters were also provided. These latter are being returned as you have requested.

Style “BLO202,” described as “Blossom Large, Ceramic Planter,” consists of a floral arrangement set in a tapering circular, decorative ceramic (earthenware) container, approximately 4½ inches in height, 7 inches in diameter at the top and 4 inches in diameter at the bottom.

The floral arrangement consists of 3 inch Palm Neathe Belle (Chamædorea elegans), 4 inch English Ivy (Hedra helix spp.), 4 inch Elephant Ear (Syngonium nepthytis), and 4 inch Kalanchoe (Kalanchoe blossfeldiana).

Style “CHA302,” described as “Charmed Medium,” consists of a floral arrangement set in a planter of base metal. This planter, a white, decorated, rectangular plant holder, measures about 12 inches long, 7 inches wide and 4 inches deep, and rests on four short legs.

The floral arrangement consists of 3 inch Palm Neathe Belle, 3 inch Philodendron (Philodendron scandens), 4 inch Baby Doll (Cordyline terminalis), 4 inch Dieff (Dieffenbachia maculata), 4 inch Rhœo (Spathacea discolor), and 4 inch Kalanchoe.

Style “DEL503,” described as “Deluxe #3, Willow Basket,” consists of a floral arrangement set in a willow basket that has been lined with a plastic fabric. The willow basket is almost circular in shape, with a diameter of about 10½ inches.

The floral arrangement consists of 3 inch Palm Neathe Belle, 4 inch Dieff, 4 inch fern, 4 inch English Ivy, 4 inch Marginata (Dracæna marginata), 4 inch Elephant Ear, 4 inch Polka Dot (Hypœstes phyllostachya), and 4 inch Kalanchoe. The ferns may be Albolineata (Pteris cretica albolineata), Boston Blue Bell (Nephrolepis exaltata), Duffii (Nephrolepis duffii), Evergemiensis (Pteris ensiformis evergemiensis), Falcata (Pellæa falcata), Green Fantasy (Nephrolepis green fantasy), Ouvrardii (Pteris multifida ouvrardii), or Roeweri (Pteris cretica roeweri).

Style “GLI303,” described as “Galileo Rectangular, Wooden Planter,” consists of a floral arrangement set in a wooden planter. The wooden planter is an open, rectangular container measuring 10 3/8 inches at the base, 4 ½ inches in width, and 5 ½ inches in height. The four side panels of the container have been painted with a design showing banana palm trees against a background of the world globe. The planter contains a plastic insert to protect the planter from moisture.

The floral arrangement consists of 4 inch Dieff, 4 inch English Ivy, 4 inch Elephant Ear, 4 inch Kalanchoe, and 4 inch Scheff (Schefflera arboricola).

Style “YOR303,” described as “Yorkshire Large, Plastic Planter,” consists of a floral arrangement set in a plastic planter. The planter is oval-shaped, measuring about 9½ inches long, 7-3/4 inches wide and 3¼ high. The exterior sides are decorated with flowers, butterflies windows and a fence, and has the appearance of the exterior of a cottage.

The floral arrangement consists of 4 inch Dieff, 4 inch English Ivy, 4 inch Elephant Ear, 4 inch Kalanchoe, and a 3 inch butterfly prop.

In addition to live plants, the floral arrangements may contain one, or more, of the miscellaneous items listed below:

The plush bear toy is a 4 inch stuffed bear toy of textile materials. The bear is in a seated position and it holds a small, textile flower. The stuffed rabbit toy, clothed in a vest and pants, is comprised entirely of textile materials. The rabbit measures 6 inches from head to toe and its ears measure an additional 3 ¼ inches. The 11 inch rabbit pick features a rabbit with a straw body, textile clothing and ears, and a textile-covered styrofoam head. The rabbit portion of the pick measures 5 inches in height. The bird pick features a plastic bird measuring 1 ¼ inches in length, 7/8 inch in width, and 7/8 inch in height. The 3 inch butterfly prop (“PROP-BFLY-3”) bears a butterfly (made of duck feathers) whose wing span measures 5 inches in length and 3 inches in width. The beaded-look pick is a prop featuring plastic molded over string to resemble beads. The item measures 9 inches in length. During the manufacturing process, plastic is molded over string to create an item that has a beaded look. The fish pick features a plastic fish measuring 3 ¼ inches in length and 2 inches in height at its highest point. The bumblebee pick bears a bee with a plastic body. The bee’s body measures 3 inches in length and its wing span measures 3 ¼ inches. The Easter egg pick features a painted, plastic Easter egg measuring 2 ¼ inches in height and 1 5/8 inches in diameter at its widest point. The chick pick bears a plastic chick standing on a feather. The chick measures 2 ¼ inches in height and 1 ¾ inches in width. The rectangular fabric pick bears pile fabric measuring 4 ¼ inches in length and 1 ½ inches in width.

All the plants included in the arrangements were live plants imported with soil attached to the roots. In NY K87519, all the articles - plants in soil, planters, and other items listed - were classified separately in their appropriate headings.

You contend that these “dish gardens,” essentially consisting of live plants (including both flowers and greenery) rooted in soil and packed into decorative planters made from various materials should be classified as composite goods under General Rule of Interpretation (GRI) 3(b).

ISSUE:

Whether the instant arrangements of live plants imported with soil in various containers and with various other articles are classified separately under GRI 1, HTSUS, or as composite goods or goods put up for retail sale as sets under GRI 3(b).

LAW AND ANALYSIS:

Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that the classification of goods shall be determined 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.

The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System at the international level. While not legally binding, the ENs provide a commentary on the scope of each heading of the HTSUS and are thus useful in ascertaining the classification of merchandise under the Harmonized System. CBP believes the ENs should always be consulted. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

The HTSUS provisions (2006) under consideration are as follows:

0602 Other live plants (including their roots), cuttings and slips; mushroom spawn:

0604 Foliage, branches and other parts of plants, without flowers or flower buds, and grasses, mosses and lichens, being goods of a kind suitable for bouquets or for ornamental purposes, fresh, dried, dyed, bleached, impregnated or otherwise prepared:

3924 Tableware, kitchenware, other household articles and toilet articles, of plastics:

3926 Other articles of plastics and articles of other materials of headings 3901 to 3914:

4420 Wood marquetry and inlaid wood; caskets and cases for jewelry or cutlery and similar articles, of wood; statuettes and other ornaments, of wood; wooden articles of furniture not falling within chapter 94:

4602 Basketwork, wickerwork and other articles, made directly to shape from plaiting materials or made up from articles of heading 4601; articles of loofah:

Other made up articles, including dress patterns:

6701 Skins and other parts of birds with their feathers or down, feathers, parts of feathers, down and articles thereof (other than goods of heading 0505 and worked quills and scapes):

Statuettes and other ornamental ceramic articles:

8306 Bells, gongs and the like, nonelectric, of base metal; statuettes and other ornaments, of base metal; photograph, picture or similar frames, of base metal; mirrors of base metal; and base metal parts thereof:

Other toys; reduced-size (“scale”) models and similar recreational models, working or not; puzzles of all kinds; parts and accessories thereof:

9505 Festive, carnival or other entertainment articles, including magic tricks and practical joke articles; parts and accessories thereof:

You argue that these arrangements are sold as units, and therefore, should be considered as composite goods. You argue that the essential character to these arrangements is provided by the plants, which ought to be considered foliage and classified under heading 0604, HTSUS. You argue this classification is supported by the EN to heading 0604, HTSUS. You argue that the instant plants fall under the common and commercial meaning of “foliage,” and as a result, fall under heading 0604, HTSUS. You argue that certain “flower picks” and other items that you call accessories (and which were classified under the headings cited above in NY K87519), also fall under heading 0604, HTSUS.

We disagree with this claimed classification on several grounds, which will be discussed below.

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 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 are applied, taken in order.

None of the items classified in NY K87519 fall under heading 0604, HTSUS. In this instance, the text of heading 0604, HTSUS, itself (including the other exemplars in the heading), as well as EN 06.04 clearly indicate that heading 0604, HTSUS, excludes parts of plants containing flowers. The heading text clearly states that the articles provided therein include, “foliage, branches and other parts of plants, without flowers ...” The exclusion of foliage with flowers is also stated in EN 06.04, which states in relevant part:

Goods of this heading may bear decorative fruits, but if they incorporate flowers of flower buds they are excluded (heading 06.03).

Further, heading 0604, HTSUS, only provides for parts of plants that are imported “fresh, dried, dyed, bleached, impregnated or otherwise prepared.” Live plants are not included within the scope of the heading; they are specifically provided for in headings 0601, HTSUS, and 0602, HTSUS. Thus, the arrangements do not fall under heading 0604, HTSUS, because none of the components fall under its terms, and in fact it is precluded from classification under that heading by the terms of heading 0604, HTSUS, itself.

Upon examination, no other single heading provides for the subject merchandise as a whole. Thus, for tariff purposes, the merchandise constitutes a good consisting of two or more substances or materials. Accordingly, it may not be classified solely on the basis of GRI 1. Further, GRI 2(a) is inapplicable because it applies to incomplete or unfinished articles, and the product is imported in a finished condition. According to GRI 2(b), the classification of goods consisting of more than one material or substance shall be according to the principles of GRI 3. GRI 3 requires that the competing provisions which may be considered for the classification of the whole good are those headings that provide for the components, if they were classified separately. GRI 3(b) states that:

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 then their essential character, insofar as this criterion is applicable.

The ENs provide guidance in interpreting the HTSUS. EN (IX) to GRI 3(b) states the following:

For the purposes of this Rule, composite goods made up of different components shall be taken to mean not only those in which the components are attached to each other to form a practically inseparable whole but also 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.

Further, EN (X) to GRI 3(b) states, in pertinent part:

For purposes of this Rule, the term “goods put up in sets for retail sale” shall be taken to mean goods which:
consist of at least two different articles which are, prima facie, classifiable in different headings . . .; consist of products or articles put up together to meet a particular need or carry out a specific activity; and are put up in a manner suitable for sale directly to users without repacking . . . .

Applying the above EN (IX) description of a composite article to the instant gift item, we must assess whether the three elements are met. Live plants, various planters of wood, plastic, and ceramics, and the various other articles listed above are usually sold separately. Indeed, the live plants and planters are not adapted one to the other, nor are they mutually complementary. Not only are the planters generally sold as a separate item in most florist or home decorating stores, but also similar types of baskets to the basket described here are sold separately in other specialty shops, either empty or filled with other gift items. In HQ 957198, dated December 21, 1995, CBP classified various fresh cut flower bouquet arrangements, including plastic liners, and mechanical items to tie the bouquets under the headings of each individual item. As noted in HQ 957198, live plants and decorative planters are not normally sold together. According to GRI 3(b), the “dish gardens” do not form a composite good.

Since the “dish gardens” are not composite goods, the next question is whether they are sets. In classifying sets, the first step is to determine whether the combination of articles qualifies as a set within the meaning of the HTSUS. While requirements (a) and (c) listed in EN (X) to GRI 3(b) are satisfied, requirement (b) is not. See EN (X). The articles contained in the “dish gardens” are not dedicated to a particular need or specific activity; they are dedicated to more than one particular need or specific activity. The plants provide decoration, while the planters can be used to hold other types of items or can provide a decorative function. Moreover, what you describe as “decorative accessories” can be used for decoration or other purposes wholly separate from either the plants or planters. The components are unrelated to each other and they can function individually. Components put up together that are dedicated to more than one purpose (that is, more than one particular need or specific activity) cannot be considered “sets put up for retail sale” under GRI 3(b).

Even though the planters function as containers, they do not meet the requirements of GRI 5(a) or (b). GRI 5(a) provides that containers shaped or fitted to contain a specific article or set of articles, shall be classified with such articles when of a kind normally sold therewith. GRI 5(b) states that packing materials and packing containers presented with the goods therein shall be classified with the goods if they are of a kind normally used for packing such goods. The instant planters are not shaped or fitted to contain the other components, nor are they the normal kind of packing container for the components. In certain CBP rulings, the pots or containers in which live plants in soil were imported appear to be used simply for transportation. See HQ 950296, dated December 12, 1991; HQ 953036, dated March 29, 1993; HQ 953501, dated June 4, 1993; HQ 953613, dated March 31, 1993; HQ 956472, dated September 19, 1994. As stated above, the instant planters are not of the normal kind of packing container for the components.

When articles put up together are determined not to form a proper set under GRI 3(b), they are classified individually, each in its own appropriate heading. An example in EN (X) of a bottle of spirits (heading 2208) and a bottle of wine (heading 2204) packaged together were found not to be a "set" and were classified separately. The five arrangements of live plants are not composite goods or sets put up for retail sale under GRI 3(b). Each individual article and component retains its individual identity. Therefore, we conclude that the components of the instant “dish gardens” will have to be classified separately.

HOLDING:

The live fern plants are classified under subheading 0602.90.3090, HTSUSA, which provides for: “Other live plants (including their roots), cuttings and slips; mushroom spawn: Other: Herbaceous perennials: Other: With soil attached to roots: Other.” The column one, general rate of duty is 1.4 percent ad valorem.

The live plants other than ferns are classified under subheading 0602.90.6090, HTSUSA, which provides for: “Other live plants (including their roots), cuttings and slips; mushroom spawn: Other: Other: Other: With soil attached to roots: Other.” The column one, general rate of duty is 1.9 percent ad valorem.

The plastic planters, style “YOR303,” are classified under subheading 3924.90.5500, HTSUSA, which provides for: “other household articlesof plastics: Other: Other.” The column one, general rate of duty is 3.4 percent ad valorem.

The plastic articles imported with the floral arrangements, namely, the bird pick, the beaded-look pick, the fish pick, the bumblebee pick, and the chick pick (only), are classified under subheading 3926.40.0000, HTSUSA, which provides for: “Other articles of plastics and articles of other materials of headings 3901 to 3914: Statuettes and other ornamental articles.” The column one, general rate of duty is 5.3 percent ad valorem.

The wooden planters, style “GLI303,” are classified under subheading 4420.90.8000, HTSUSA, which provides for: “Wood marquetry and . . . ; wooden articles of furniture not falling within chapter 94: Other: Other.” The column one, general rate of duty is 3.2 percent ad valorem.

The willow baskets, style “DEL503,” are classified under subheading 4602.10.1200, HTSUSA, which provides for: “Basketwork, . . .: Of vegetable materials: Other baskets and bags, whether or not lined: Of willow.” The column one, general rate of duty is 5.8 percent ad valorem.

The textile materials imported with the floral arrangements, namely, the rabbit pick and the rectangular fabric pick are classified under subheading 6307.90.9889, HTSUSA, which provides for: “Other made up articles . . . : Other: Other: Other: Other: Other.” The column one, general rate of duty is 7 percent ad valorem.

The butterflies made of duck feathers are classified under subheading 6701.00.3000, HTSUSA, which provides for: “Skins and other parts of birds with their feathers or down, feathers, parts of feathers, down and articles thereof (other than goods of heading 0505 and worked quills and scapes): Articles of feathers or down.” The column one, general rate of duty is 4.7 percent ad valorem.

The decorative, ceramic (earthenware) planters are classified under subheading 6913.90.5000, HTSUSA, which provides for: “Statuettes and other ornamental ceramic articles: Other: Other: Other.” The column one, general rate of duty is 6 percent ad valorem.

The base metal planters, style “CHA302,” are classified under subheading 8306.29.0000, HTSUS, which provides for: “Bells . . . ; statuettes and other ornaments, of base metal; . . . : Statuettes and other ornaments, and parts thereof: Other.” The column one, general rate of duty is free.

The plush bear toys and stuffed rabbit toys are classified under subheading 9503.41.0000, HTSUSA, which provides for: “Other toys; . . . : Toys representing animals or non-human creatures . . . and parts and accessories thereof: Stuffed toys and parts and accessories thereof.” The column one, general rate of duty is free.

The Easter egg picks are classified under subheading 9505.90.6000 HTSUSA, which provides for: “Festive, carnival or other entertainment articles, including magic tricks and practical joke articles; parts and accessories thereof: Other: Other.” The column one, general rate of duty is free.

Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the World Wide Web at www.usitc.gov/tata/hts.

EFFECT ON OTHER RULINGS:

NY K87519, dated July 20, 2004, is AFFIRMED.

Sincerely,

Myles B. Harmon, Director

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