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HQ 958411




January 31, 1996

CLA-2 RR:TC:FC 958411 RC

CATEGORY: CLASSIFICATION

TARIFF NO.: 6702.90.6500

Donald S. Stein, Esq.
Manatt, Phelps & Phillips
1501 M Street, N.W.
Washington, D.C. 20005

RE: Classification of "Easter Tree" with Ornaments; GRI 3 Sets; Not Festive Articles

Dear Mr. Stein:

This letter is in response to your request of August 2, 1995, for a binding classification ruling concerning an "Easter Tree" with ornaments. A samples was submitted with the ruling request.

FACTS:

The sample resembles a leafless deciduous tree measuring 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.

ISSUES:

1) Whether the articles are classified in heading 9505, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), as festive articles.

2) If not classifiable as festive articles, whether the items are classified in heading 7326, HTSUSA, as articles of iron or steel wire or in heading 6702, HTSUSA, as artificial foliage.

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, 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 9505, HTSUSA, provides for, among other items, festive, carnival or other entertainment articles. The ENs to heading 9505 state, in part, that the heading covers:

(A) Festive, carnival or other entertainment articles, which in view of their intended use are generally made of non- durable material. They include:

(1) Decorations such as festoons, garlands, Chinese lanterns, etc., as well as various decorative articles made of paper, metal foil, glass fibre, etc., for Christmas trees (e.g., tinsel, stars, icicles), artificial snow, coloured balls, bells, lanterns, etc. Cake and other decorations (e.g., animals, flags) which are traditionally associated with a particular festival are also classified here.

In general, merchandise is classifiable in heading 9505, HTSUSA, as a festive article when the article, as a whole:

1. is of non-durable material or, generally, is not purchased because of its extreme worth, or intrinsic value (e.g., paper, cardboard, metal foil, glass fiber, plastic, wood);

2. functions primarily as a decoration (e.g., its primary function is not utilitarian); and

3. is traditionally associated or used with a particular festival (e.g., stockings and tree ornaments for Christmas, decorative eggs for Easter).

An article's satisfaction of these three criteria is indicative of classification as a festive article. The motif of an item is not dispositive of its classification and, consequently, does not transform an item into a festive article.

We consider the "Easter tree" and ornaments to be made of non-durable material (since they are not designed for sustained wear and tear, nor are they purchased because of their extreme worth or value). The items are also primarily decorative in function.

With respect to the third criterion, however, we find that an "Easter tree" - unlike decorative Easter eggs - is not traditionally associated with Easter. An "Easter tree" is not the same type of article cited in the ENs as examples of traditional, festive articles. In light of the above, the it does not fall into heading 9505, HTSUS, and must be classified elsewhere.

As previously noted, the article essentially consists of an Easter tree and its ornaments. The article cannot be classified by reference to GRI 1 because the components, the tree and its ornaments, are classifiable in different headings.

The tree component is classifiable in heading 6702, HTSUS, while the ornaments are classifiable in headings 9505, HTSUSA.

In pertinent part, GRI 2(b) states that:

[t]he classification of goods consisting of more than one material or substance shall be according to the principles of rule 3.

GRI 3(a) directs that the headings are regarded as equally specific when each of the headings refers to part only of the items in a set put up for retail sale. Therefore, to determine under which provision the article will be classified, we look to GRI 3(b), which in pertinent part states that:
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 VIII to GRI 3(b) provides the following guidance concerning the essential character determination:

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, with its base, the "Easter tree" is the component of greatest bulk, weight, and value. Further, the tree provides the means by which the ornaments may be suspended and displayed. Thus, the "Easter tree" component gives the whole article its essential character.

Your submission claims the "Easter tree" properly falls into heading 7326, HTSUSA, the provision for articles of iron or steel wire because you believe the metal wire is the single largest component of the tree and imparts the essential character. We agree that the wire tree imparts the essential character rather than the ornaments.

However, among other items, heading 6702, HTSUSA, provides for artificial foliage. The American College Dictionary (1970), defines "foliage" in pertinent part as "3. the representation of leaves, flowers, and branches in architectural ornament, etc." Subheading 6702.10, HTSUS, covers artificial foliage of plastics, while subheading 6702.90, covers artificial foliage of other materials. Classification in heading 6702, HTSUSA, is more specific than classification in heading 7326, HTSUSA. Thus, we thus find that the "Easter trees" and ornaments fall into subheading 6702.90.6500, HTSUSA, as artificial foliage of materials other than plastics, and other than feathers and man-made fibers. See HRL 957516 (June 23, 1995).

HOLDING:

The "Easter tree" and ornaments falls 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.

Sincerely,

John Durant, Director
Tariff Classification

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