OT:RR:CTF:CPMM H305354MMM
Ms. Alice Liu Atico International USA Inc. 501 South Andrews Avenue Ft. Lauderdale, FL 33301
RE: Revocation of NY N236262, NY N260368, and NY N255988; Classification of lighted metal trees
Dear Ms. Liu,
This is in reference to the New York Ruling Letter (NY) N236262, issued to you by U.S. Customs and Border Protection (CBP) on January 4, 2013, concerning classification of a lighted metal tree under the Harmonized Tariff Schedule of the United States (HTSUS). We have reviewed your ruling, and determined that it is incorrect, and for the reasons set forth below, are revoking your ruling in regard to the lighted tree.
We have also reviewed the following rulings: NY N260368, dated January 21, 2015 and NY N255988, dated September 4, 2014 and determined that they are also incorrect, and for the reasons set forth below, we are also revoking those rulings.
Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. § 1625(c)(1)), as amended by section 623 of Title VI, notice of the proposed action was published on December 26, 2019, in Volume 53, Number 47, of the Customs Bulletin. No comments were received in response to this notice.
FACTS:
In your ruling NY N236262, CBP stated as follows with respect to the subject merchandise:
[The] [i]tem … is a light sculpture in the shape of a leafless tree, measuring approximately 60 inches tall. The light sculpture is constructed of a black-painted metal (non brass) wire frame intertwined with a light string. The light string consists of two insulated wire conductors twisted together and wrapped in black tape incorporating 50 black lamp-holders. The lamp- holders enclose orange-colored miniature plastic LED (light emitting diode) lamps.
The end of the light string comprised of a 30 inch lead wire with a combination of two-prong plug, a socket rated for 125 volt (V) and two 3 amp (A) fuses. There is a rectangular metal anchor at the base for mounting the light sculpture onto the flat surface, i.e. ground or floor. Although the light sculpture is referenced as a Halloween Spooky Tree designed for indoor and outdoor use, neither the “tree” nor the orange-colored bulbs are recognized as a festive motifs.
Additionally in ruling NY N260368, CBP stated as follows with respect to the subject merchandise:
The merchandise consists of 5 LED leafless trees identified as the “Lighted Branch Tree” or a “Lighted Deciduous Tree…” The sample…is a lighted leafless tree that measures approximately 7 feet tall, inserted into a round steel wire base. The item is comprised of a collapsible steel framework with pliable steel wires that resembles bare tree branches, and LED light strings powered by a two-prong plug wire. The steel tree trunk and branches are welded together. The light strings feature 300 miniature LED lamps (bulbs) inserted into weather-resistant sealed lamp holders and attached to the trunk and branches by plastic clips. The remote controlled lights feature changing bulb colors and function as a steady, pulsating or twinkling lights. The remote control is included.
CBP classified the lighted metal trees in NY N236262 and NY N260368 in heading in 9405 HTSUS, specifically in subheading 9405.40.6000, HTSUS, which provides for “Lamps and lighting fittings…not elsewhere specified or included: Other electric lamps and lighting fittings: Of base metal: Other.”
In ruling NY N255988, CBP stated as follows with respect to the subject merchandise:
The items under consideration are the 24” LED Lighted Flocked Tree…, and the 24” LED Lighted Glitter Tree...The items are described as light sculptures in the shape of leafless trees. The leafless trees measure approximately 24 inches tall. The trees’ branches are made of thin wires intertwined with a light string. The plastic wires and pole are wrapped with brown PVC tape. The tips of the branches contain clear miniature LED bulbs, powered by three AA batteries that are located underneath the rectangular base. The battery box is equipped with an On/Off slide switch. It is stated that the trees are composed of 55 percent plastic and 45 percent metal.
CBP classified the lighted metal tree in NY N255988 in heading 9405 HTSUS, specifically in subheading 9405.40.8000, HTSUS, which provides for “Lamps and lighting fittings…: Other electric lamps and lighting fittings: Other.”
ISSUE:
Whether the lighted metal trees are classified in heading 6702, as artificial flowers, foliage and fruit and parts thereof, in 8306, as statuettes and other ornaments, of base metal, or 9405, as lamps.
LAW AND ANALYSIS:
Merchandise imported into the United States is classified under the HTSUS. Tariff classification is governed by the principles set forth in the General Rules of Interpretation (GRIs) and, in the absence of special language or context which requires otherwise, by the Additional U.S. Rules of Interpretation. The GRIs and the Additional U.S. Rules of Interpretation are part of the HTSUS and are to be considered statutory provisions of law for all purposes.
GRI 1 requires that classification be determined first 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 heading and legal notes do not otherwise require, the remaining GRIs 2 through 6 may then be applied in order. GRI 2(a) provides, in relevant part, that "[a]ny reference in a heading to an article shall be taken to include a reference to that article incomplete or unfinished, provided that, as entered, the incomplete or unfinished articles has the essential character of the complete or finished article."
The Harmonized Commodity Description and Coding System Explanatory Notes ("ENs") constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings . See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
The 2020 HTSUS provisions under consideration are as follows:
6702 Artificial flowers, foliage and fruit and parts thereof; articles made of artificial flowers, foliage or fruit
8306 Bells, gongs and the like, nonelectric, of base metal; statuettes and
other ornaments, of base metal; photograph, picture or similar frames, of base metal; mirrors of base metal; and base metal parts thereof
9405 Lamps and lighting fittings including searchlights and spotlights
and parts thereof, not elsewhere specified or included; illuminated signs, illuminated nameplates and the like, having a permanently fixed light source, and parts thereof not elsewhere specified or included
We begin our analysis with Heading 6702, which applies to artificial flowers, foliage and fruit and parts thereof; articles made of artificial flowers, foliage or fruit. Note 3(b) to Chapter 67 states:
3. Heading 67.02 does not cover:
(b) Artificial flowers, foliage or fruit of pottery, stone, metal, wood or other materials, obtained in one piece by moulding, forging, carving, stamping or other process, or consisting of parts assembled otherwise than by binding, glueing, fitting into one another or similar methods.
Additionally, the General Explanatory Notes to Heading 6702 states:
This heading covers:
(1) Artificial flowers, foliage and fruit in forms resembling the natural products, made by assembling various parts (by binding, glueing, assembling by fitting into one another or similar methods). This category also includes conventional representations of flowers, foliage or fruit made up in the manner of artificial flowers, etc.
(2) Parts of artificial flowers, foliage or fruit (e.g., pistils, stamens, ovaries, petals, calyces, leaves and stems).
(3) Articles made of artificial flowers, foliage or fruit (e.g., bouquets, garlands, wreaths, plants), and other articles, for use as trimmings or as ornaments, made by assembling artificial flowers, foliage or fruit.
Heading 8306 applies to Bells, gongs and the like, non electric, of base metal; statuettes and other ornaments, of base metal; photograph, picture or similar frames, of base metal; mirrors of base metal. Section XV, in Note 3 defines “base metals” as:
Throughout the Nomenclature, the expression “base metals” means : iron and steel, copper, nickel, aluminium, lead, zinc, tin, tungsten (wolfram), molybdenum, tantalum, magnesium, cobalt, bismuth, cadmium, titanium, zirconium, antimony, manganese, beryllium, chromium, germanium, vanadium, gallium, hafnium, indium, niobium (columbium), rhenium and thallium.
The subject merchandise in the above rulings, NY N236262, NY N260368, and NY N255988, are composite goods within the meaning of GRI 3 in that they are comprised of two different components, a metal frame and a light string. However, the trunk and branches provide the merchandise with its essential character and not the lights. When the lights are turned off, the artificial tree will continue to be displayed for ornamental or decorative purposes. Therefore, the subject merchandise is not classifiable under Heading 9405.
The subject merchandise found in the above rulings are made of metal and are in forms that resemble natural products. According to Note 3(b) of Chapter 67, heading 6702 does not include artificial flowers and foliage made of metal when the merchandise is “obtained in one piece by molding, forging, carving, stamping or other process[es.]” The processes described in the first part of Note 3(b) are of the type that leave the product inseparable. Note 3(b) goes on to say that merchandise can be classified in heading 6702 when put together by binding, gluing, and fitting parts into one another. The methods described in the second part of Note 3(b) would allow merchandise to be unbound, unglued, and taken apart, and thus not “obtained in one piece.”
Following this language, the merchandise in Ruling N260368 cannot be classified in heading 6702 because the merchandise is obtained in one piece, and put together through welding, which leaves the trunk and branches inseparable, i.e. the branches and the trunk are melted together in a way that makes it impossible to take apart. The subject merchandise in NY N260368 is classified under heading 8306.
Conversely, in NY N236262 and NY N255988 the subject merchandise, based on the descriptions given, is not “obtained in one piece.” The subject merchandise is constructed by intertwining materials and the use of PVC tape. The subject merchandise in these rulings are classified under 6702.
HOLDING:
By application of GRI 1 and 3(b), the subject artificial lighted metal trees in NY N236262 and NY N255988 are classified in heading 6702, HTSUS. The subject merchandise is specifically classified in subheading 6702.90.6500, HTSUSA (Annotated), which provides for: “Artificial flowers, foliage and fruit and parts thereof; articles made of artificial flowers, foliage or fruit: of other materials: Other: Other.” The 2018 column one general rate of duty for subheading, HTSUSA, is 17% ad valorem.
By application of GRI 1 and 3(b), the subject artificial lighted tree in NY N260368 is classified in heading 8306. The subject merchandise is specifically classified in subheading 8306.29.0000, HTSUSA (Annotated), which provides for: “Bells, gongs and the like, nonelectric, of base metal; statuettes and other ornaments; … and base metal parts thereof: Other.” The 2020 column one general rate of duty for subheading 8306.29.0000, HTSUSA, is free.
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 the internet at www.usitc.gov/tata/hts
EFFECT ON OTHER RULINGS
New York Ruling Letters N236262, dated January 4, 2013, N260368, dated January 21, 2015, and N255988, dated September 4, 2014 are hereby REVOKED in accordance with the above analysis.
In accordance with 19 U.S.C. 1625(c), this ruling will become effective 60 days after publication in the Customs Bulletin.
Sincerely,
Craig T. Clark, Director
Commercial and Trade Facilitation Division
CC: Marilyn-Joy Cerny Cerny Associates, P.C. 24 Smith Street, Building 2, Suite 102 Pawling, NY 12564
CC: Martha De Castro Bed Bath & Beyond 700 Liberty Ave. Union, NJ 07083