CLA-2-67:OT:RR:NC:N2:222
Mr. Andy S. Wood
Family Dollar Services, Inc.
10401 Monroe Rd.
Matthews, NC 28105
RE: The tariff classification of artificial bushes made of plastic berries and polyester leaves from China
Dear Mr. Wood:
In your letter dated July 16, 2008, you requested a tariff classification ruling.
The submitted samples are identified as Artificial Berry Bushes. Two different samples were submitted. The first is identified as sku/item #2995109, style #EG288 and the second is identified as sku/item #2995110, style #G0870. Each of these two items consists of berries made of foam plastic material that are painted either red or burgundy, and green leaves made of polyester. The berries adorn the top of the branches and the leaves are located mostly on the lower sections of the branches. The berries and the leaves are glued to stems made of wire that is covered with plastic. As you requested, the samples will be returned to you.
These items are considered to be composite goods within the meaning of General Rule of Interpretation (GRI) 3. You have suggested that these items are correctly classified in subheading 6702.90.3500. You have cited New York Ruling (NY) K84619 dated April 8, 2004, to support your opinion. However, we do not agree that these items are correctly classified in the provision that you suggest.
The factors which determine essential character of an article will vary from case to case. The items that are the subject of the ruling that you have cited are all described as having glitter of silver or gold. On the other hand, in NY L88815 dated December 12, 2005, it was determined that a berry sprig, with man-made fiber leaves and foam plastic berries, was correctly classified in subheading 6702.10.2000 based on a determination that the plastic berries provided that item with the essential character. Likewise, in NY L84299 dated April 27, 2005, it was determined that a berry tree , with foam plastic berries and man-made fiber leaves was also correctly classified in subheading 6702.10.2000, based on a determination that the plastic berries provided that item with the essential character.
In the instant case, sku/item #2995109 has 11 clusters of berries, each measuring approximately 5 inches in length and sku/item #2995110 has 16 clusters of berries, each measuring approximately 6 inches in length. The visual impact of these items is derived from the berries and the berries serve to make these items distinctive. The leaves serve a subordinate role to the berries based on the positioning of the leaves in relation to the berries, as well as the quantity and coloring of the berries. Therefore, it is the opinion of this office that the foam plastic berries provide these items with the essential character within the meaning of GRI 3(b).
The applicable subheading for sku/item #2995109, style #EG288 and sku/item #2995110 style #G0870 will be 6702.10.2000, Harmonized Tariff Schedule of the United States (HTSUS), which provides for artificial flowers, foliage and fruit and parts thereof; articles made of artificial flowers, foliage or fruit: of plastics: assembled by binding with flexible materials such as wire, paper, textile materials or foil, or by gluing or by similar methods. The rate of duty will be 8.4 percent ad valorem.
Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on World Wide Web at http://www.usitc.gov/tata/hts/.
This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 C.F.R. 177).
A copy of the ruling or the control number indicated above should be provided with the entry documents filed at the time this merchandise is imported. If you have any questions regarding the ruling, contact National Import Specialist Gary Kalus at (646) 733-3055.
Sincerely,
Robert B. Swierupski
Director
National Commodity Specialist Division