CLA-2 RR:TC:FC 959100 RC
Port Director of Customs
Port of Columbia-Snake
c/o Chief, Residual Liquidation and Protest Branch
511 NW Broadway, Room 0198
Portland, Oregon 97209
RE: Decision on Application for Further Review of Protest No.
2904-96-100037, filed
February 20, 1996, concerning the classification of an "Easter
Tree" with Ornaments
Dear Sir:
This is a decision on a protest timely filed February 20,
1996, against your decision in the classification under the
Harmonized Tariff Schedule of the United States Annotated
(HTSUSA) of articles entered in December 1994 and liquidated
December 8, 1995, consisting of an "Easter Tree" with ornaments.
The attorney for the importer made an additional submission on
January 7, 1997.
FACTS:
The sample article consists of an 18-inch paper-covered
leafless metal "tree" with bendable wire branches; a natural
bamboo, rattan and wood basket-base; and 18 hand-painted wooden
ornaments. The ornaments, approximately one inch in height,
depicting various creatures and decorated eggs, are designed to
hang on the branches. The protestant claims alternatively that
the articles fall into heading 9505, HTSUS, as other festive
articles, articles for Christmas festivities, other than
Christmas ornaments or nativity scenes; or as other Christmas
articles of wood; or as other articles for Christmas festivities.
Additionally, the protestant claims the articles fall into
heading 9503, HTSUS, as toys. You classified the articles in
subheading 6702.90.3500, HTSUSA, as artificial flowers, foliage
dutiable at 17 percent ad valorem (1994).
ISSUE:
Whether the Easter trees properly fall into heading 6702,
HTSUS, as artificial flowers, foliage; into heading 9505, HTSUS,
as festive articles; or into heading 9503, HTSUS, as toys.
LAW AND ANALYSIS:
Classification under the HTSUSA is made in accordance with
the General Rules of Interpretation (GRIs). The systematic
detail of the harmonized system is such that virtually all 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 GRIs may then
be applied.
The Explanatory Notes (ENs) to the Harmonized Commodity
Description and Coding System constitute the official
interpretation of the tariff at the international level. While
not legally binding, they facilitate classification under the
HTSUS by offering guidance in understanding the scope of the
headings and GRIs. It has therefore been the practice of the
U.S. Customs Service to follow, whenever possible, the terms of
the ENs when interpreting the HTSUSA.
Heading 9505, HTSUSA, provides, in pertinent part, for
"[f]estive, carnival or other entertainment articles." The
protestant claims that the "Easter trees" are classifiable in
heading 9505, HTSUSA, as festive articles of the same kind or
class as Christmas trees, albeit, decorations designed to
celebrate Easter and Springtime. However, it is Customs position
that the "Easter trees" per se - unlike decorative Easter eggs -
are not traditionally associated with the particular festival of
Easter or Springtime. We find that these claims are without
merit.
With respect to the protestant's claims that the "Easter
trees" are classifiable, as toys in heading 9503, HTSUS, the ENs
to Chapter 95, HTSUSA, indicate that "this chapter covers toys of
all kinds whether designed for the amusement of children or
adults." It is Customs' position that the amusement requirement
means that toys should be designed and used principally for
amusement. See, Additional U.S. Rule of Interpretation 1(a),
HTSUSA. Customs defines principal use as that use which exceeds
each other single use of the article.
We find that the "Easter trees" are principally designed to
decorate, not to amuse. Any play value or amusement derived from
the figures is secondary or purely incidental. Additionally, we
note that the "Easter trees" retail packaging does not show
suggested age proscriptions that one commonly sees on retail
packaging for toys containing small items. As such, we find that
the "Easter trees" are not within the class of merchandise
covered by Heading 9503, HTSUS, but are classifiable elsewhere.
Customs has consistently classified Easter tree articles in
heading 6702, HTSUS, the provision for, inter alia, artificial
foliage. See, Headquarters Ruling Letter (HRL) 958940 (November
13, 1996), affirming 958411 (January 31, 1996); HRL 957312 (May
31, 1995); HRL 957516 (June 23, 1995).
Subheading 6702.10, HTSUS, covers artificial foliage of
plastics, while subheading 6702.90, covers artificial foliage of
other materials. As noted above, several diverse materials
comprise the "Easter trees," (i.e., wire branches; a natural
bamboo, rattan and wood basket-base; and 18 hand-painted wooden
ornaments). No single heading covers the subject merchandise, so
classification cannot be determined by application of GRI 1.
Instead, we refer to the subsequent GRI's. GRI 2 does not apply
because the instant items are not incomplete or unfinished
articles nor are they mixtures or combinations of goods. GRI 3,
however, provides, in pertinent part:
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:
(a) The heading which provides the most specific
description shall be preferred to headings
providing a more general description. However,
when two or more headings each refer to part only
of the materials or substances contained in mixed
or composite goods or to part only of the items in
a set put up for retail sale, those headings are
to be regarded as equally specific in relation to
those goods, even if one of them gives a more
complete or precise description of the goods.
(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 X to GRI 3(b) to the HTSUSA, which
constitutes the official interpretation of the tariff at the
international level, provides, in part:
(X) For the purposes of this Rule, the term "goods put up
in sets for retail sale" shall be taken to mean goods
which:
(a) consist of at least two different articles which
are, prima facie, classifiable in different
headings;
(b) consist of products or articles put up together to
meet a particular need or carry out a specific
activity; and
(c) are put up in a manner suitable for sale directly
to users without repacking (e.g., in boxes or
cases or on boards).
In the instant case, the items qualify as a set within the
meaning of GRI 3 because the items, the tree, the pot, and the
ornaments, classifiable in different headings, will be used
together for decoration. Furthermore, the items are presented in
a box packaged for retail sale, demonstrating that these items
are normally sold as a set directly to users without repacking.
With respect to GRI 3(a), we note that no heading more
specifically describes the goods at issue. In turn, we must
determine which component, if any, imparts the essential
character of the sets pursuant to GRI 3(b).
Explanatory Note VIII to GRI 3(b) states that:
(VIII) 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.
It is apparent that, the "Easter tree," itself, plays an
important role providing the means by which the ornaments may be
suspended and displayed. In terms of its material and role in
relation to the use of the "Easter trees," the wire tree
component is such that it imparts the essential character.
Therefore, the "Easter trees" are properly classified in
subheading 6702.90.6500, HTSUSA, as artificial foliage of
materials other than plastics, and other than feathers and
man-made fibers.
HOLDING:
The "Easter trees" and ornaments fall into subheading
6702.90.6500, 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."
The applicable duty rate is 17 percent ad valorem (1994).
You are instructed to deny the protest in full. A copy of
this decision should be attached to the Form 19 to be returned to
the protestant.
In accordance with Section 3A(11)(b) of Customs Directive
099 3550-065, dated
August 4, 1993, Subject: Revised Protest Directive, this
decision should be mailed by your office to the protestant no
later than 60 days from the date of this letter. Any
reliquidation of the entries in accordance with the decision must
be accomplished prior to mailing of the decision. Sixty days
from the date of the decision, the Office of Regulations and
Rulings will take steps to make the decision available to Customs
personnel via the Customs Rulings Module in ACS, and to the
public via the Diskette Subscription Service, the Freedom of
Information Act, and other public access channels.
Sincerely,
John Durant, Director
Tariff Classification
Appeals Division