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HQ 957406





April 30, 1996

CLA-2 RR:TC:FC 957406 RC

CATEGORY: CLASSIFICATION

TARIFF NO.: 6702.90.6500

Port Director of Customs
P.O. Box 619050
1205 Royal Lane
DFW Airport, Texas 75261-0950

RE: Decision on Application for Further Review of Protest No. 5501-94-100287, filed
September 15, 1994, concerning the classification of swags containing artificial and natural components

Dear Sir:

This is a decision on a protest timely filed September 15, 1994, against your decision in the classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) of articles entered in November 1993 and liquidated in August 12, 1994, described as sprays or swags containing artificial and natural components.

FACTS:

The articles are a blueberry twig spray with a birdnest (Item no. H278), a raspberry twig spray with a birdnest (Item no. H279), and a berry or grape swag (Item no. B313). Each variety is composed of both artificial and natural foliage, such as, wire, paper, plastics, Styrofoam, glue, fabric, natural twigs, branches, and moss. The protestant claims that the articles fall into subheading 0604.99.6000, HTSUSA, as foliage, branches and other parts of plants, dutiable at 9 percent ad valorem (1994). You classified Item no's H278 and B313 in subheading 6702.90.6500, HTSUSA, as artificial flowers, foliage, and fruit, dutiable at 17 percent ad valorem (1994), and Item no. H279 in subheading 0604.99.6000, HTSUSA.

ISSUE:

Whether these articles fall into heading 0604, HTSUSA, as foliage, branches, and other parts of plants or heading 6702, HTSUSA, as artificial flowers, foliage, and fruit.

LAW AND ANALYSIS:

Classification under the HTSUSA is made in accordance with the GRIs. 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. The Explanatory Notes (EN's) 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's.

Each item is composed of articles falling into at least two different headings. As mandated by GRI 2(b), the proper classification of goods consisting of more than one material or component shall be determined by the application of GRI 3.

GRI 3 states that when goods are prima facie classifiable under two or more headings, classification shall be effected as follows:

(a) 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.

(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.

(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.

In this instance, headings 0604 and 6702, HTSUSA, are equally specific in relation to each other. As we cannot classify these goods pursuant to GRI 3(a), we turn to GRI 3(b). Neither the natural nor the artificial components impart the essential character to these articles. The articles fully incorporate both components, each contributing equivalent bulk, weight, and value. Accordingly, classification is determined by GRI 3(c). As heading 6702, HTSUSA, is the heading which occurs last in numerical order among the headings which would equally merit consideration, all of the items are classifiable in heading 6702, HTSUSA.

As stated above, the articles at issue here are classifiable in heading 6702, HTSUSA. However, as these articles comprise several artificial flower, foliage, and fruit components (plastics, Styrofoam, wire, and paper), there is no one subheading within heading 6702, HTSUSA, that specifically describes this merchandise. As the articles are prima facie classifiable within two or more subheadings within heading 6702, HTSUSA, GRI 3 is applicable.
See, GRI 6.

In this instance, the subheadings 6702.10 and 6702.90 HTSUSA, are equally specific in relation to each other. As we cannot classify these goods pursuant to GRI 3(a), we turn to GRI 3(b). Neither the plastic nor the other components impart the essential character to these articles. The articles fully incorporate these components, each contributing equivalent bulk, weight, and value. Accordingly, classification is determined by GRI 3(c). As subheading 6702.90, HTSUSA, is the subheading which occurs last in numerical order among the subheadings which would equally merit consideration, the articles are classifiable in subheading 6702.90, HTSUSA, more specifically, 6702.90.6500, HTSUSA.

HOLDING:

All of the articles, the blueberry twig spray with a birdnest (Item no. H278), the raspberry twig spray with a birdnest (Item no. H279), and the berry or grape swag (Item no. B313), are classifiable in subheading 6702.90.6500, HTSUSA, which provides for artificial flowers, foliage and parts thereof: of other materials (other than plastics): other: other. The applicable rate of duty is 17 percent ad valorem (1994).

Except to the extent that reclassification of the merchandise as indicated above results in net duty reductions and partial allowances, you are instructed to deny the protest. A copy of this decision should be attached to the Form 19 to be returned to the protestant.

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 entries in accordance with the decision must be accomplished prior to mailing of 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 ACS, and to the public via the Diskette Subscription Service, the Freedom of Information Act, and other public access channels.

Sincerely,

John Durant, Director
Tariff Classification

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