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HQ W968060




October 5, 2006

CLA-2 RR:CTF:TCM W968060 KSH

TARIFF NO.: 6702.90.6500

Evans and Wood & Co., Inc.
612 E. Dallas Rd.
Suite 200
Grapevine, TX 76051

RE: Revocation of Headquarters Ruling Letter (HQ) 958043, dated December 5, 1995; Classification of Styrofoam pumpkin and gourd covered with paper.

Dear Sir or Madam:

This is in reference to Headquarters Ruling Letter HQ 958043 issued to the Port Director, Dallas/Fort Worth Airport, Texas, on December 5, 1995, with regard to protest 5501-95-100186, concerning the classification, under the Harmonized Tariff Schedule of the United States (HTSUSA), of a Styrofoam pumpkin and gourd covered with paper. The articles were classified in subheading 6702.10.2000, HTSUSA, 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." Since the issuance of that ruling, U.S. Customs and Border Protection (CBP) has reviewed the classification of these items and has determined that the cited ruling is in error.

HQ 958043 is a decision on a specific protest. A protest is designed to handle entries of merchandise which have entered the U.S. and been liquidated by CBP. A final determination of a protest, pursuant to Part 174, CBP Regulations (19 CFR 174), cannot be modified or revoked as it is applicable only to the merchandise which was the subject of the entry protested. Furthermore, CBP lost jurisdiction over the protested entries in HQ 958043 when notice of denial of the protest was received by the protestant. See, San Francisco Newspaper Printing Co. v. U.S., 9 CIT 517, 620 F.Supp. 738 (1935).

However, CBP can modify or revoke a protest review decision to change the legal principles set forth in the decision. Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. 1625(c)(1)), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act (Pub.L. 103-182, 107 Stat. 2057, 2186 (1993)), 60 days after the date of issuance, CBP may propose a modification or revocation of a prior interpretive ruling or decision by publication and solicitation of comments in the CUSTOMS BULLETIN. Notice of the proposed revocation of HQ 958043 was published in the Customs Bulletin, Vol. 40, No. 32, on August 2, 2006. No comments were received in response to the notice.

FACTS:

The pumpkin and gourd were 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. The pumpkin and gourd are stated to be comprised of 65% Styrofoam, 20% paper and 15% paint.

ISSUE:

Whether the pumpkin and gourd are classified in subheading 6702.10, HTSUSA, as artificial fruit of plastics or subheading 6702.90, HTSUSA, as artificial fruit of other materials.

LAW AND ANALYSIS:

Classification under the HTSUSA is made in accordance with the General Rules of Interpretation (GRI). 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 GRI may then be applied. The Explanatory Notes (EN) to the Harmonized Commodity Description and Coding System, which represent the official interpretation of the tariff at the international level, facilitate classification under the HTSUSA by offering guidance in understanding the scope of the headings and GRI.

Heading 6702, HTSUSA, provides for “artificial flowers, foliage and fruit and parts thereof; articles made of artificial flowers, foliage and fruit.” The subject paper coated Styrofoam pumpkin and gourds are decorative items consisting of foamed plastic shapes that are covered with paper. Thus, for tariff purposes, they constitute goods consisting of two or more substances or materials. As such, the items are arguably classifiable under subheading 6702.10, HTSUSA, as artificial fruit of plastics or subheading 6702.90, HTSUS, as artificial fruit of other materials. Accordingly, they may not be classified solely on the basis of GRI 1. See, GRI 6 which states, in part, that the classification of goods in the subheadings of a heading is to be according to the terms of those subheadings and any relative section and chapter notes and, by appropriate substitution of terms, to Rules 1 through 5. Further, GRI 2(a) is inapplicable because it applies to incomplete or unfinished articles, and the paper covered Styrofoam pumpkin and gourds are imported in a finished complete condition. GRI 2(b) states that the classification of goods consisting of more than one material or substance shall be according to the principles of GRI 3.

GRI 3(a) states that when, by application of rule 2(b) or for any other reason, goods are, prima facie, classifiable under two or more headings, the heading which provides the most specific description shall be preferred to headings providing a more general description. However, when two or more headings each refer to part only of the materials or substances contained in mixed or composite goods or to part only of the items in a set put up for retail sale, those headings are to be regarded as equally specific in relation to those goods, even if one of them gives a more complete or precise description of the goods. As the subject paper covered Styrofoam pumpkin and gourds are composite goods, we must apply rule 3(b), which provides that composite goods are to be classified according to the component that gives the good its essential character. We must determine whether the foamed plastic pumpkin and gourd or the paper imparts the essential character to the articles.

EN VIII to GRI 3(b) explains that "[t]he 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 the constituent material in relation to the use of the goods."

The internal foamed plastic pumpkin or gourd may provide the bulk and shape, however the surface paper that covers the Styrofoam pumpkin and gourd provides the texture, markings and color. The paper imparts the visual impact, consumer appeal and nature of the article. The essential character of the paper covered Styrofoam pumpkin and gourd is the paper. The paper covered Styrofoam pumpkin and gourd are accordingly classifiable in subheading 6702.90.6500, HTSUSA.

HOLDING:

Pursuant to GRI 3(b), the paper covered Styrofoam pumpkin and gourd are classified in subheading 6702.90.6500, HTSUSA, 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: other." The general, column one rate of duty is 17% ad valorem.

EFFECT ON OTHER RULINGS:

HQ 958043, dated December 5, 1995, is hereby revoked. This revocation will not affect the entries which were the subject of Protest 5501-95-100186, but will be applicable to any unliquidated entries, or future importations of similar merchandise 60 days after publication of the final notice of revocation in the CUSTOMS BULLETIN, unless an earlier date is requested pursuant to 19 CFR 177.12(e)(2)(ii).

Sincerely,

Myles B. Harmon, Director
Commercial and Trade Facilitation Division

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