CLA-2 RR:TC:FC 958940 ALS
Donald S. Stein, Esq.
Manatt, Phelps & Phillips
1501 M Street, N.W.
Washington, DC 20005
RE: Reconsideration of Headquarters Ruling Letter (HRL) 958411, Dated January 31, 1996, Regarding the Classification of a Leafless Deciduous "Easter Tree" With Ornaments.
Dear Mr. Stein:
This is reference to your written request and subsequent
meeting concerning reconsideration of HRL 958411, which
classified the subject tree in subheading 6702.90.6500,
Harmonized Tariff Schedule of the United States Annotated
(HTSUSA), the provision for "Artificial flowers, foliage and
fruit and parts thereof; articles made of artificial flowers,
foliage or fruit: Of other materials: Other: Other."
FACTS:
The article under consideration, as described in HRL 958411,
is labeled an "Easter tree" and "resembles a leafless deciduous
tree." It measures approximately 18 inches in height. The trunk
and branches of each style are composed of wire wrapped with foil
paper strips in a variety of colors. The trunks of the trees are
embedded in a wire base similar to a candlestick holder. Also
included are small egg-shaped ornaments, each having a small loop
of string permitting suspension from the tree branches. We also
note that the branches go out in a multidirectional manner from
the trunk and that they of a curlicue design. We further note
that the trunk is formed by a braiding of the wires at the base
of the branches.
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ISSUE:
What is the classification of an "Easter tree" which is
composed of metal wire wrapped with foil paper strips?
LAW AND ANALYSIS:
Classification of merchandise under the HTSUSA is governed
by the GRI's taken in order. GRI 1 provides that the
classification is determined first in accordance with the terms
of the headings and any relative section and chapter notes. If
GRI 1 fails to classify the goods and if the headings and legal
notes do not otherwise require, the remaining GRI's are applied ,
taken in order.
Counsel has suggested that the subject article should be
classified under the provision for festive articles, subheading
9505.90.6000, HTSUSA. In support thereof counsel has referenced
2 cases which are presently the subject of judicial review. We
find that those cases, until finally adjudicated, are not the
basis for the classification of merchandise. We find no other
basis for altering our prior conclusion that the subject article
is not classifiable as a festive article. We hereby affirm our
prior ruling HRL 958411 as to that conclusion.
Counsel questions the propriety of classification of an
article described as a leafless deciduous "Easter tree" of metal
as "foliage" under subheading 6702.90.6500, HTSUSA. Counsel has
submitted a number of lexicographic definitions of the term
"foliage" and has noted that they all indicate that such term
requires the presence of leaves. Some of the definitions
indicate that the term "foliage" may be broader and include
branches, stems, twigs, etc., in addition to the leaves. Counsel
argues that the subject tree does not have leaves and that it,
therefore, does not meet a basic requirement of foliage.
We do not agree with that conclusion. We note that the
subject tree represents a type of tree which, in nature, has
leaves during the growing season, a deciduous tree. The
branches, as previously noted, are of a curlicue design, causing
one to wonder whether they might be representations of
conduplicate leaves. In this regard, we recognize that leaves
take many forms in the natural world. They might, for example,
be a broad leaf such as in the case of a maple tree, a needle in
the case of an evergreen, or a prickly stem in the case of a
cactus.
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In any case we do not believe that the terms of the
aforementioned subheading were intended to be narrowly construed
so as to only include parts of a tree, trees only at a certain
stage of growth or the branch of a tree, etc., from which the
growth might emanate. To so construe the tariff provision would
cause the tree, bush, etc. to be classified separately from its
growth and under a provision less specific than that applicable
to the item which has grown therefrom.
In this regard, we note heading 0604 of the Harmonized
System which provides, as herein pertinent, for "Foliage,
branches and other parts of plants, without flowers or flower
buds...being of a kind suitable...for ornamental purposes..." is
comparable to heading 6702 save that the former covers natural
(but not live) products whereas the latter covers artificial
products. Despite this and the fact that trees are not mentioned
in heading 0604, trees are specifically listed thereunder, in
subheading 0604.91.00, HTSUSA. We note that the Explanatory
Notes (EN) to the Harmonized System as to heading 06.04, which
represents the views of the international classification experts,
specifically notes that "[T]he heading covers natural Christmas
trees, provided that they are clearly unfit for replanting (e.g.,
root sawn off, root killed by immersion in boiling water)." We
believe this to be synonymous with trees used for ornamental
purposes and that the distinction to be drawn between these trees
and the ones under consideration, is a distinction between
natural and artificial. It has been concluded that both
provisions are inclusionary provisions meant to cover a group of
certain types of articles suitable for certain purposes, i.e.,
ornamental, and that they are not exclusionary provisions meant
to cover only the portions of items.
While counsel has alternately suggested that the instant
article should be classified in subheading 8306.29.0000, HTSUSA,
as other ornamental articles of base metal, we have concluded
that it is not necessary to consider that possible classification
in light of the above conclusion.
HOLDING:
Easter trees of base metal, which are 18 inches tall, whose
trunk and branches are composed of wire wrapped with foil paper
strips in a variety of colors, are classifiable in subheading
6702.90.6500, HTSUSA. That provision covers "Artificial flowers, - 4 -
foliage and fruit and parts thereof, articles made of artificial
flowers, foliage or fruit: Of other materials: Other: Other."
Merchandise so classified is subject to a general rate of duty of
17 percent ad valorem.
HRL 958411 is affirmed.
Sincerely,
John Durant, Director
Tariff Classification
Appeals Division