HQ 950475: "Wildwood Tilly" Tillandsia Air Plant; Live Plant in heading 0602, HTSUSA; Applicability of subheading 9802.00.80, HTSUSA; Tariff Preferences under CFTA

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                            HQ 950475

                        November 20, 1991

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

CATEGORY: Classification

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.

FACTS:

     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

                               -2-


          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

ISSUE:

     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.

LAW AND ANALYSIS:

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.




                               -3-

     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).





                               -4-



     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."








                               -5-


HOLDING:

     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.

                                   Sincerely,


                                   John Durant, Director
                                   Commercial Rulings Division