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HQ W968067




October 5, 2006

CLA-2 RR:CTF:TCM W968067 KSH

CATEGORY: CLASSIFICATION

TARIFF NO.: 6702.90.6500

Ms. Linda Broadford
Bradlees Stores, Inc.
1 Bradlees Circle
Braintree, MA 02184

RE: Modification of New York Ruling Letter (NY) G83315, dated October 20, 2000; Classification of Styrofoam gourds covered with paper.

Dear Ms. Bradford:

This letter is to inform you that the Bureau of Customs and Border Protection (CBP) has reconsidered New York Ruling Letter (NY) G83315, issued to you on October 20, 2000, concerning the classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) of, among other merchandise, eight Styrofoam gourds 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, CBP has reviewed the classification of these items and has determined that the cited ruling is in error as it pertains to the classification of the paper covered Styrofoam gourds.

Pursuant to section 625(c), Tariff Act of 1930, (19 U.S.C. 1625(c)), 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), notice of the proposed modification of NY G83315 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 eight artificial gourds of various shapes and colors (predominantly green and orange) are made of Styrofoam covered with painted paper. They have short, glued-on “stems” made of wire and plastic.

ISSUE:

Whether the gourds 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 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 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 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 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 gourds may provide the bulk and shape, however the surface paper that covers the Styrofoam gourds provides the texture, markings and color. The paper imparts the visual impact, consumer appeal and nature of the articles. The essential character of the paper covered Styrofoam gourds is the paper. The paper covered Styrofoam gourds are accordingly classifiable in subheading 6702.90.6500, HTSUSA.

HOLDING:

Pursuant to GRI 3(b), the paper covered Styrofoam gourds 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:

NY G83315, dated October 20, 2000, is hereby modified. In accordance with 19 U.S.C. 1625(c), this ruling will become effective 60 days after publication in the Customs Bulletin.

Sincerely,

Myles B. Harmon, Director
Commercial and Trade Facilitation Division

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