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HQ 959100




April 21, 1997

CLA-2 RR:TC:FC 959100 RC

CATEGORY: CLASSIFICATION

TARIFF NO.: 6702.90.6500

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

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