CLA-2 OT:RR:CTF:TCM H147436 JRB
Colleen McFall
Analyst, Global Compliance & Classification
Jo-Ann Stores, Inc.
5555 Darrow Road
Hudson, Ohio 44221
RE: Tariff classification of various decorative vine baskets with artificial foliage
Dear Ms. McFall:
This is in response to your request dated December 21, 2011, to U.S. Customs and Border Protection (CBP) National Commodity Specialist Division in New York for a binding ruling on the tariff classification, under the Harmonized Tariff Schedule of the United States (HTSUS), of various decorative baskets containing artificial foliage. Your ruling request was forwarded to this office for a response.
FACTS:
Jo-Ann Stores intends to import four different baskets that are identified as the JY11001 (Jo-Ann Stores product number) Pumpkin Vine Basket; the LHA580866 Pumpkin Berry Vine Basket; the MMA5748A Pumpkin Berry Lotus Pod Vine Basket; and the MUA5835837 Pumpkin Berry Vine Cornucopia. The products are described below.
JY11001 Pumpkin Vine Basket is intended to be hung on a wall. It has a natural vine like twig (Smilax glabra) basket with an arching handle (22% of the cost and 54% of the weight). The entire product is approximately 13 inches long by 8 inches deep by 16 inches high. It has two artificial orange pumpkins made of Styrofoam (19% of the cost and 10% of the weight); one artificial green gourd made of Styrofoam (8% of the cost and 4% of the weight); two natural pine cones (10% of the cost and 11% of the weight); four clusters of artificial berries made of Styrofoam (17% of the cost and 9% of the weight); and artificial leaves and flowers made of polyester (13% of the value and 7% of the weight). The various artificial and natural adornments are glued onto a Styrofoam base (11% of the cost and 5% of the weight) that is placed in the twig basket. A picture of the product is below.
LHA580866 Pumpkin Berry Vine Basket is constructed from natural vine-like twigs (Vitis Amurnesis) and iron wire. The twig and iron wire basket (40% of the cost and 50% of the weight) is round with an arching handle. The product is 10 inches in diameter and 9 inches high. The basket holds one orange Styrofoam pumpkin (20% of the cost and 10% of the weight), three natural pine cones (4% of the cost and 2% of the weight), eight clusters of Styrofoam berries (12% of the cost and 3% of the weight), and polyester leaves (12% of the cost and 4% of the weight). The adornments are glued to a Styrofoam base (12% of the cost and 31% of the weight) that is placed inside of the basket. A picture of the product follows on the next page.
MMA5748A Pumpkin Berry Lotus Pod Vine Basket is constructed from natural vine like twigs (Vitis Amurensis) that is intended to be hung from a wall using the basket. The basket accounts for about 36% of the product’s weight. The entire object is approximately seventeen inches long by seven inches wide by eighteen inches high. The vine basket (34% of the cost) is in the shape of a basket with an arching handle that is only visible on the product’s rear. The product is adorned with one orange Styrofoam pumpkin (4.5% of the cost and 9% of the weight); 1 orange Styrofoam gourd (4.5% of the cost and 8% of the weight); 1 natural lotus pod Nelumbo nucifera (1% of the cost and 5% of the weight); 6 berry clusters made from Styrofoam and polyethylene (14% of the cost and 6% of the weight); and polyester leaves with polyethylene and iron wire stems (39% of the cost 31% of the weight). All of the adornments are glued to the Styrofoam base (3% of the cost and 5% of the weight). A picture of the item is below.
MUA5835837 Pumpkin Berry Vine Cornucopia is constructed of natural vine like twigs (Vitis amurensis). The product is in the shape of a cornucopia (39% of the cost and 48% of the weight) with an arching back. It is 16 inches long by 14 inches deep by 8 inches high. The cornucopia is adorned with one orange Styrofoam pumpkin (6% of the cost and 4% of the weight); 1 orange Styrofoam gourd (6% of the cost and 9% of the weight); 3 berry clusters made with Styrofoam and polyethylene (9% of the cost and 3% of the weight); and polyester leaves (27% of the cost 31% of the weight). All of the adornments are glued to a Styrofoam base (13% of the cost and 5% of the weight). A picture of the product is below.
ISSUE:
Whether the four samples described above are classified in heading 0604, HTSUS, as foliage of plants; heading 4602, HTSUS, as plaiting materials; or heading 6702, HTSUS, as artificial foliage.
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 2 through 6 may then be applied in order.
The HTSUS provisions under consideration in this case are as follows:
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:
4602 Basketwork, wickerwork and other articles, made directly to shape from plaiting materials or made up from articles of heading 4601; articles of loofah:
6702 Artificial flowers, foliage and fruit and parts thereof; articles made of artificial flowers, foliage or fruit:
There is no dispute that heading 0604, HTSUS, describes the pine cones and lotus pods; that heading 4602, HTSUS, describes the braided vine like twig baskets and cornucopia; and that heading 6702, HTSUS, describes the artificial leaves and flowers. In addition, the four baskets have different components such that they are considered composite goods. Classification of composite goods is governed by GRI 3(b). That rule provides:
When, by application of rule 2(b) or for any other reason, goods are prima facie classifiable under two or more headings, classification shall be effected as follows:
(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.
Explanatory Note VIII to GRI 3(b) provides:
The 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 a constituent material in relation to the use of the goods.
The courts have discussed the issue of classification by application of GRI 3(b) on several occasions. See Conair Corp. v. United States, 29 C.I.T. 888 (2005); Structural Industries v. United States, 360 F. Supp. 2d 1330, 1337-1338 (Ct. Int’l Trade 2005); and Home Depot USA, Inc. v. United States, 427 F. Supp. 2d 1278, 1295-1356 (Ct. Int’l Trade 2006), aff’d 491 F.3d 1334 (Fed. Cir. 2007). In particular, in Home Depot USA, Inc. v. United States, the court stated “[a]n essential character inquiry requires a fact intensive analysis.” 427 F. Supp. 2d 1278, 1284 (Ct. Int’l Trade 2006). In that case, the Court of International Trade examined all of the factors listed in EN VIII to GRI 3(b) to determine the classification of merchandise. Id. at 1293. In addition, the court also noted that the EN list is not exhaustive and that other factors should be considered including the article’s name, primary function, and the “attribute which strongly marks or serves to distinguish what it is. Its essential character is that which is indispensable to the structure, core or condition of the article, i.e., what it is.” Id. (quoting A.N. Deringer, Inc. v. United States, 66 Cust. Ct. 378 (1971)). CBP finds that an essential character analysis will vary from product to product. Therefore, CBP will undertake an essential character analysis for each of the four products because of the factually intensive analysis required.
CBP has classified composite articles composed of plaiting materials and artificial foliage on a case-by-case analysis based on which material imparts the given item with its essential character. See, e.g., Headquarters Ruling Letter (HQ) H141058, dated January 20, 2011, New York Ruling Letter (NY) N005692, dated February 16, 2007, and NY H87004, dated January 30, 2002 (classified wreaths in heading 4602, HTSUS); and NY N047158, dated January 15, 2009 and NY B86828, dated July 16, 1997 (classifying wreaths in heading 6702, HTSUS).
JY11001 the Pumpkin Vine Basket
The first factors that we look to with respect to the Pumpkin Vine Basket are the factors identified in EN VIII to GRI 3(b), including the weight, value, and role of each component. The vine basket accounts for the majority of the product’s weight. With respect to the value factor, the artificial foliage accounts for just over half the value of the good. Therefore, the value tends to indicate that the essential character is provided by the artificial foliage while the weight tends to indicate that the essential character is provided by the vine basket plaiting materials. The next factor listed in the EN is the role of the components in relation to the use of the goods. In this case, the vine basket is an important component in relation to the use of the good. The vine basket is the base that the owner uses to hang the product from a wall. The vine basket also provides a decorative appeal on its own. Thus, with respect to the role factor we find that the vine basket provides the product with its essential character.
The courts have also identified factors to examine when determining the essential character of an item. See Home Depot, 427 F. Supp. 2d at 1293. In particular, the court notes that CBP should look to the component that is indispensable to the structure of the complete good. Id. The basket is the predominant component because it is the base for the flowers. Without the basket, the product could not be hung on a wall. In addition, the basket provides the general outline or profile of the product because the basket is rounded at the top and narrows to a rounded point at the bottom. CBP finds that this profile is provided by the basket because the basket lines extend from an acute angle from the bottom and the handle rounds out the top outline. The Pumpkin Vine Basket is entirely framed by the outline of the basket. Therefore, we find that the basket is the component that provides the product with its essential character with respect to this judicially created factor.
Finally, the courts have noted that CBP should look to the name of the product. Id. In this case, the name of the product includes two of the three components. The name indicates that the product has some sort of pumpkin (in this case an artificial one of heading 6702, HTSUS) and a basket (of plaiting material in heading 4602, HTSUS). Therefore, this factor is not determinative. However, given that the name does not include pine cones and given the fact that the pine cones account for such a small percentage of the value of the good we conclude that the pine cone does not provide the essential character of the product.
Based on the factors discussed above, CBP finds that the essential character of the Pumpkin Vine Basket is the vine basket, which is provided for in heading 4602, HTSUS, as plaiting materials. The basis for this conclusion is that the basket serves as an important component in the product’s structure allowing it to be hung from a wall, that the product’s name includes a reference to the basket, and most importantly that the basket provides the product with its general profile. This is the component that defines the general shape of the product and gives someone the ability to display the product as it is intended to be displayed as a decorative wall hanging. Therefore, the Pumpkin Vine Basket is classified in heading 4602, HTSUS.
LHA580866 Pumpkin Berry Vine Basket
The next product to be considered is the Pumpkin Berry Vine Basket. Applying the factors as we did above; the vine basket accounts for half of the product’s weight. With respect to the value factor, the vine basket is also the most valuable component accounting for approximately 40% of the cost of the product. Next, we look to the role of the components in relation to the use of the good. Once again the good is intended to be displayed as a decorative wall display. The vine basket is the component that is used to hang the product on the wall. It is also the component that provides the merchandise with its general profile. The outline of the vine basket and its handle provides the product with a rounded top and a squared off bottom. Therefore, the vine basket is the most important component in relation to the use of the good and it is also the most important component in the structure of the good because it provides the outline of the product and it allows the product to be hung from a wall. Finally, with respect to the name, we find that it is unhelpful because it includes both artificial foliage and the basket in its name. However, since the name does not include real foliage like the pine cones we find that this indicates that the pine cones do not provide the product with its essential character.
Based on our analysis of the factors, we find that the basket provides the merchandise with its essential character because it is the component that provides the profile of the product and it is the component that is necessary to function as a hanging floral decoration. Therefore, the Pumpkin Berry Vine Basket is classified in heading 4602, HTSUS.
MMA5748A Pumpkin Berry Lotus Pod Vine Basket
Applying the same factors to the third product; the vine basket accounts for 40% of the weight while the artificial foliage accounts for 31% of the weight. Thus with respect to the weight factor the plaiting material is the heaviest component although its weight is similar to the weight of the artificial foliage. With respect to the value factor, we find that the artificial foliage is the most expensive component accounting for about 39% of the product’s manufacturing cost. In addition, with respect to the role of the components in relation to the use of the good we find that the vine basket is the most important because it is the component that allows the product to be hung from a wall. However, it is not the only component that provides the product with its general profile. In this instance, the vine basket provides the profile, or general shape, of the product’s bottom but it is the artificial foliage that provides the rounded top of the merchandise. Therefore, with respect to determining which component is the core or most important component we are unable to make that determination because both components provide the merchandise with the general outline of the product. In addition, the name of the product is also unhelpful in all respects because it includes references to the artificial foliage, the natural lotus pod, and the vine basket. Thus, a consumer is expecting to purchase all of those items. Therefore, CBP finds that it is unable to determine the essential character of this product pursuant to GRI 3(b) because the plaiting material predominates in some factors while the artificial foliage predominates in other factors. In addition, both materials provide the product with its shape and its name.
When CBP is unable to classify a product pursuant to GRI 3(b), classification must occur by application of GRI 3(c). GRI 3(c) indicates that a product is to be classified by the component that is classified in the last heading in the HTSUS. In this case, that is heading 6702, HTSUS, which provides for artificial foliage. Therefore, the Pumpkin Berry Lotus Pod Vine Basket is classified in heading 6702, HTSUS, as artificial foliage.
MUA5835837 Pumpkin Berry Vine Cornucopia
Finally, applying the aforementioned factors to the last product, the natural cornucopia is the heaviest component and it is the most expensive component. Similar to the three previous products, the cornucopia is the component that is used to hang the product on a wall. In addition, it is the component that provides the product with its general outline because the product starts out at the bottom with a narrow cornucopia like bottom that continues out through the foliage. The product’s name is also helpful in this case because a cornucopia is defined as “[t]he horn of plenty; a goat's horn represented in art as overflowing with flowers, fruit, and corn.” See Oxford English Dictionary (2d ed. 1989); also available at http://www.oed.com. The name, given the definition, indicates that the product must contain a horn like basket along with flowers, fruit, or other plant products. The essential component of the cornucopia is the horn shaped basket because the base for any cornucopia arrangement is the horn, the vine horn also is the most expensive and heaviest component. Therefore, we find that with respect to the Pumpkin Berry Vine Cornucopia the natural twig cornucopia is the essential component. Thus, this product is classified in heading 4602, HTSUS.
HOLDING:
By application of GRI 3(b), the JY11001 Pumpkin Vine Basket, the LHA580866 Pumpkin Berry Vine Basket, and the MUA5835837 Pumpkin Berry Vine Cornucopia are classified in heading 4602, HTSUS, more specifically in subheading 4602.19.17, HTSUS, which provides for “[b]asketwork, wickerwork and other articles, made directly to shape from plaiting materials or made up from articles of heading 4601; articles of loofah: [o]f vegetable materials: [o]ther: [o]ther baskets and bags, whether or not lined: [o]ther: [w]ickerwork…”. The 2011 column one, general rate, of duty is Free.
By application of GRI 3(c) the MMA5748A Pumpkin Berry Lotus Pod Vine Basket is classified in heading 6702, HTSUS, more specifically in subheading 6702.90.35, HTSUS, 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: [o]f man-made fibers…” The 2011 column one, general rate, of duty is 9% ad valorem.
Duty rates 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.
A copy of this ruling letter should be attached to the entry documents filed at the time the goods are entered. If the documents have been filed without a copy, this ruling should be brought to the attention of the CBP officer handling the transaction.
Sincerely,
Ieva K. O’Rourke, Chief
Tariff Classification and Marking Branch