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HQ 950475

November 20, 1991

CLA-2 CO:R:C:F 950475 LPF


TARIFF NO.: 0602.99.9090

Mr. David Heller
Tillandsia Tropiques
5164 Notre Dame, West
Montreal, Quebec, Canada H4C 1T3

RE: "Wildwood Tilly" Tillandsia Air Plant; Live Plant in heading 0602, HTSUSA; Applicability of subheading 9802.00.80, HTSUSA; Tariff Preferences under CFTA

Dear Mr. Heller:

This is in response to your letter of September 12, 1991, submitted on behalf of Tillandsia Tropiques, requesting the proper classification of a decorative item, "Wildwood Tilly", consisting of tillandsia air plants, grapevine wood, a ceramic dish and crushed marble stones under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). You submitted photocopies of the item, from a brochure, with your request for a binding ruling.


The decorative item, called "Wildwood Tilly," consists of tillandsia air plants mounted (glued) onto grapevine wood which is held in a ceramic dish, surrounded by 1/4 inch crushed marble stones. Air plants, properly termed epiphytes, do not grow in earth or water, but are supported, in air, on trees, bark or other objects from which they usually draw no organic nourishment. See The Standard Cyclopedia of Horticulture 242, 1124 (1943). We understand from telephone conversations with you that the air plants and wood are grown in the U.S. and are exported to Canada in their natural state. In Canada the air plants and wood are glued to each other and then to the crushed stones and ceramic dish which are manufactured in Canada and are of Canadian materials. It is claimed that the cost and the weight of the components, not including the glue, moss and tag, is as follows:

Model 1 - Large Ceramic Dish
6 plants .12 lbs Cdn $6.00 crushed stones 2.50 lbs $1.00 grapevine wood 1.01 lbs $4.00 ceramic dish 1.95 lbs $3.00

Model 2 - Medium Ceramic Dish
4 or 5 plants .10 lbs Cdn $4.00 or $5.00 crushed stones .85 lbs $ .40 grapevine wood .45 lbs $3.50 ceramic dish .55 lbs $1.00

Model 3 - Small Ceramic Dish
2 or 3 plants .06 lbs Cdn $2.00 or $3.00 crushed stones .52 lbs $ .30 grapevine wood .25 lbs $1.50 ceramic dish .56 lbs $ .85


Whether the "Wildwood Tilly" is classified as a live plant in heading 0602, HTSUSA; will be eligible for partial duty exemption available in subheading 9802.00.80, HTSUSA, when imported into the U.S.; and will be considered an "originating good in Canada" for purposes of the United States - Canada Free Trade Agreement (CFTA) and, thus, is eligible for the CFTA tariff preferences.


Subheading 0602.99.9090, HTSUSA

The General Rules of Interpretation (GRI's) taken in their appropriate order provide a framework for classification of merchandise under the HTSUSA. The majority of imported 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 GRI's may then be applied.

As discussed, supra, the "Wildwood Tilly" consists of several components. These components are classifiable as follows: the air plants in Chapter 6, HTSUSA; the grapevine wood in Chapter 44, HTSUSA; the crushed stones in Chapter 25, HTSUSA; and the ceramic dish in Chapter 69, HTSUSA. GRI 3(a) explains, in pertinent part, that when goods are, prima facie, classifiable under two or more headings, the articles are to be classified under the heading which provides the most specific description of the good in question. All headings are regarded as equally specific, however, when each refers to part only of the goods.

Each of the possible headings refers to only part of the subject merchandise. Since the headings are, thus, regarded as equally specific, we do not classify the article by GRI 3(a) but turn our attention to GRI 3(b).

GRI 3(b) provides that articles made up of different components, that is, composite goods, shall be classified as if they consisted of the component which gives them their essential character. "Essential character" has been construed to mean: the attribute which strongly marks or serves to distinguish what an article is. Explanatory Note VIII to GRI 3(b) explains that bulk, quantity, weight, value or the role of the constituent material in relation to the use of the article are indicia of essential character.

The tillandsia air plant imparts the essential character of the article. The value of the air plant exceeds that of the other components. In addition, it distinguishes the item as a plant decoration. The other components all serve to enhance the air plant and facilitate its use as a home or office decoration. The "Wildwood Tilly" is, therefore, classifiable in heading 0602. The applicable subheading is 0602.99.9090, HTSUSA, providing for other live plants.

U.S. Goods Returned

Chapter 98, Subchapter II, HTSUSA, incorporates provisions that apply to articles which are exported and then returned to the U.S. Subheading 9802.00.80, HTSUSA, provides a partial duty exemption for:

[a]rticles assembled abroad in whole or in part of fabricated components, the product of the United States, which (a) were exported in condition ready for assembly without further fabrication, (b) have not lost their physical identity in such articles by change in form, shape or otherwise, and (c) have not been advanced in value or improved in condition abroad except by being assembled and except by operations incidental to the assembly process such as cleaning, lubricating and painting.

All three requirements of subheading 9802.00.80, HTSUSA, must be satisfied before a component may receive a duty allowance. An article entered under this tariff provision is subject to duty upon the full cost or value of the imported assembled article, less the cost or value of the U.S. components assembled therein, upon compliance with the documentary requirements of section 10.24, Customs Regulations (19 CFR 10.24).

Section 10.16(a), Customs Regulations (19 CFR 10.16(a)), provides that the assembly operation performed abroad may consist of any method used to join or fit together solid components, such as welding, soldering, riveting, bolting, force fitting, gluing, laminating, sewing, or the use of fasteners. Furthermore, Section 10.16(d), Customs Regulations (19 CFR 10.16(d)), provides that an assembly operation may involve the joining of American- made and foreign components with the duty exemption applying only to the American-made components of the assembly.

From the information provided, it appears that the operations performed in Canada, that is, gluing, securely join the air plant to the grapevine wood (both of U.S.-origin) and then securely join those components to the stones and ceramic dish (both of Canadian origin). Therefore, we are of the opinion that the operations performed in Canada are acceptable assembly operations pursuant to 19 CFR 10.16(a).

United States - Canada Free Trade Agreement

Articles which are imported from Canada may be entitled to certain tariff preferences under the United States - Canada Free Trade Agreement (CFTA) if the articles are "originating goods" as defined by General Note 3(c)(vii)(B), HTSUSA. There are two primary means in General Note 3(c)(vii)(B) by which articles imported into the United States may be "goods originating in the territory of Canada." General Note 3(c)(vii)(B)(1) provides for goods "wholly obtained or produced in the territory of Canada and/or United States." General Note 3(c)(vii)(B)(2) provides for goods "transformed in the territory of Canada and/or the United States."

A product which is "wholly obtained or produced in the territory of Canada and/or United States" is one which is grown, mined, harvested, born and raised in Canada and/or the United States, or otherwise intimately connected to the two countries and their land, air and sea territories as defined in General Note 3(c)(vii)(L), HTSUSA. Since the air plants and wood are grown in the United States and the stones and dishes are manufactured from Canadian materials, the merchandise qualifies as a product "wholly obtained or produced in the territory of Canada and/or United States."


It is our opinion that securely joining the air plant to the grapevine wood and then joining those components to the dish and stones is considered an acceptable assembly operation. Therefore, the returned item may be classified under subheading 9802.00.80, HTSUSA, with an allowance in duty for the cost or the value of the U.S.-origin air plant and wood, upon compliance with the documentary requirements of 19 CFR 10.24.

The "Wildwood Tilly" is also an originating good under General Note 3(c)(vii)(B)(1) and is entitled to the tariff preferences under the CFTA. As the item is properly classified in subheading 0602.99.9090, HTSUSA, as "Other live plants (including their roots), cuttings and slips; mushroom spawn: Other: Other: Other: Other, Other," the special column one rate of duty is 5.2 percent ad valorem.


John Durant, Director
Commercial Rulings Division

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