CLA-2 RR:CR:GC 962979 JGB
Ms. Yolanda S. Massey
Import Manager
Michaels Stores, Inc.
8000 Bent Branch Drive
Irving, TX 75063
RE: Reconsideration of NY C82012; Natural Pine
Cone Pick; Midwest of Cannon Falls, Inc. v. United States
Dear Ms. Massey:
This is in response to your letter of January 27, 1999, to the Customs National Commodity Specialist Division, New York, on behalf of Michaels Stores, Inc., in which you request the reconsideration of New York Ruling Letter (NY) C82012, issued December 3, 1997, under the Harmonized Tariff Schedule of the United States (HTSUS), on five styles of natural pine cone picks for ornamental and decorative use.
Your letter stated that the decision in Midwest of Cannon Falls, Inc. v. United States might affect the result of NY C82012. Your letter was referred to this office for reply. We regret the delay.
FACTS:
The articles are natural pine cone picks, suitable for bouquets or ornamental purposes. The natural pine cone picks consist of a natural pine cone on a stick, used for ornamental purposes in constructing bouquets and wreaths. Depending on the model, they are painted white, with lacquer and gold edge, gold glitter, snow and gold glitter, painted silver, or with artificial snow.
ISSUE:
Whether the pine cone picks are classified in heading 9505, HTSUS, as festive articles, or elsewhere.
LAW AND ANALYSIS:
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that the classification of goods shall be determined 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 may then be applied. The Explanatory Notes (ENs) to the Harmonized Commodity Description and Coding System, which represent the official interpretation of the tariff at the international level, facilitate classification under the HTSUS by offering guidance in understanding the scope of the headings and GRIs.
Heading 0604, HTSUS, provides for “Foliage, branches and other parts of plants, without flowers or flower buds, and grasses, mosses and lichens, being goods of a kind suitable for bouquets or for ornamental purposes, fresh, dried, bleached, impregnated or otherwise prepared." Pine cones are classified in subheading 0604.99.60, HTSUS, as articles other than mosses and lichens, other than fresh and other than dried or bleached.
Heading 9505, HTSUS, provides, among other things, for festive, carnival or other entertainment articles. Articles for Christmas festivities used as Christmas ornaments are provided for in subheading 9505.10.25, HTSUS. Although the natural pine cone picks are potentially described by both heading 0604 and heading 9505, consideration must be given to relevant section and chapter notes. Note 2 to chapter 6, HTSUS, which covers heading 0604, provides that:
2. Any reference in heading 0603 or 0604 to goods of any kind shall be construed as including a reference to bouquets, floral baskets, wreaths and similar articles made wholly or partly of goods of that kind, account not being taken of accessories of other materials. However, these headings do not apply to collages or similar decorative plaques of heading 9701.
Thus, if the natural pine cones are combined with accessories of other materials, the identity of those other materials will not affect the basic classification in heading 0604.
In Midwest of Cannon Falls, Inc. v. United States, Slip Op. 96-19 (Ct. Int’l Trade, 1996), aff’d in part, rev’d in part, 122 F.3d 1423, Appeal Nos. 96-1271, 96-1279 (Fed. Cir. 1997) (hereinafter Midwest), the Court addressed the scope of heading 9505, HTSUS, specifically the class or kind of merchandise termed “festive articles,” and provided new guidelines for classification of such goods in the heading. In general, merchandise is classifiable as a festive article in heading 9505, HTSUS, when the article, as a whole:
1. Is not predominately of precious or semiprecious stones, precious metal or metal clad with precious metal;
2. Functions primarily as a decoration or functional item used in celebration of, and for entertainment on, a holiday; and
3. Is associated with or used on a particular holiday.
Based upon a review of the articles subject to the Midwest decision, Customs is of the opinion that the Court has included within the scope of the class “festive articles,” decorative household articles which are representations of an accepted symbol for a recognized holiday, and utilitarian/functional articles that are three-dimensional representations of an accepted symbol for a recognized holiday. See Customs Bulletin, Volume 32, Numbers 2/3, dated January 21, 1998.
In addition to the criteria listed above, the Court considered the general criteria for classification set forth in United States v. Carborundum Company, 63 CCPA 98, C.A.D. 1172, 536 F.2d 373 (1976), cert. denied, 429 U.S. 979 (hereinafter Carborundum). Therefore, with respect to decorative and utilitarian articles related to holidays and symbols not specifically recognized in Midwest or in the Customs Bulletin dated January 21, 1998, Customs will also consider the general criteria set forth in Carborundum to determine whether a particular good belongs to the class or kind “festive articles.” Those criteria include the general physical characteristics of the article, the expectation of the ultimate purchaser, the channels of trade, the environment of sale (accompanying accessories, manner of advertisement and display), the use in the same manner as merchandise which defines the class, economic practicality of so using the import, and recognition in the trade of this use.
While Customs views these articles as principally ornamental, they differ from most of the products readily found to be festive articles of heading 9505, HTSUS, in that they are natural products that are provided for with substantial specificity in heading 0604, HTSUS. Customs has considered carefully whether the addition of glitter, paint, lacquer, or the sticks would be sufficient to view the articles as having been advanced beyond the condition of a mere pine cone, thereby justifying their classification as festive articles of heading 9505, HTSUS. That approach is impossible in view of Legal Note 2 to Chapter 6, set forth supra. The Legal Note makes it clear that the classifier is directed to ignore the artificial or "unnatural" additions to the natural product that would assist in the article becoming a decorative object. As such, we view the pine cone picks as more specifically provided for in heading 0604, HTSUS. This result is required under the GRI 3(a) which states that 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."
Customs acknowledges that the pine cone picks would be incorporated into an article used to decorate the home, a standard employed by the court in Midwest. Customs has also recognized the pine cone as an accepted symbol when it also satisfies Carborundum standards outlined, supra. See, e.g., Headquarters Ruling Letter (HQ)962900, October 27, 2000.
In this respect, if the pine cone pick were considered for classification in heading 9505, HTSUS, the classification would fail, based on GRI 3(a). Reinforcing this determination is the EN to heading 9505, HTSUS, which states that "This heading also excludes: (a) Natural Christmas trees (Chapter 6)." It is reasonable to make a distinction in Christmas goods between the natural and artificial types when the ENs make a distinction between "Natural Christmas [pine] trees" and artificial ones and the chapter notes provide unambiguously for natural foliage to be classified with the other natural goods, even when made into "wreaths and similar articles." We also note that if natural Christmas trees are directed to be classified in Chapter 6, it follows that the fruit of those trees, the pine cones, would be classified in Chapter 6, also.
Other Customs rulings have dealt with pine cones that are incorporated into a large assortment of artificial foliage. In those cases where the weight or volume of the natural pine cones was surpassed by the weight of the artificial components, heading 9505 was considered and prevailed. See NY C82038, January 27, 1998, to Michaels Stores, Inc. (components of polyester, polyvinyl chloride, plastic, wire, woven man-made fiber holly leaves, plastic red berries); NY 804361, December 13, 1994 (pine cone candle ring with artificial evergreen, artificial holly leaves, artificial fruit, red velvet bows and simulated wrapped gift box). It is assumed that these cases presented facts otherwise qualifying the articles for classification in heading 9505, HTSUS, and the pine cones do not constitute the essential character of the article.
HOLDING:
The pine cone picks are classified in subheading 0604.99.60, HTSUS.
NY C82012 is AFFIRMED.
Sincerely,
John Durant, Director
Commercial Rulings Division