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HQ 966616




March 3, 2004

CLA-2 RR:CR:GC 966616 NSH

CATEGORY: CLASSIFICATION

TARIFF NO.: 9505.10.25

Ms. Kim Young
BDP International
2721 Walker Avenue N.W.
Grand Rapids, MI 49504

RE: NY J83527 revoked; Christmas bendable stick tree; Midwest of Cannon Falls v. United States; Park B. Smith, Ltd. v. United States

Dear Ms. Young:

This is in response to your letter of July 15, 2003, requesting reconsideration of NY J83527, dated April 22, 2003, on behalf of Meijer Distribution, on the classification of an artificial tree under the Harmonized Tariff Schedule of the United States (HTSUS). Your letter has been referred to this office for reply.

FACTS:

The subject merchandise, item #921207, is referred to as a “Christmas bendable stick tree” by the manufacturer and is composed, by surface area, of 70 percent wire and 30 percent plastic. The item measures approximately 18 inches in height and is composed of multiple strands of green colored wire that are intertwined to form the shaft of the tree. Individual green wires are interspersed and protrude from the shaft of the tree, representing its branches; those wires at the bottom of the shaft are the longest and the wires taper off in length as they approach the top of the shaft, giving the item a recognizable evergreen tree appearance. At the tip of each branch is a single LED light that is red, green, or yellow in color. There are a total of 45 branches, and thus a total of 45 LED lights, on the tree. The base of the tree is composed of plastic and houses a two “C” size battery compartment with an on/off switch on the bottom. When turned on, the lights on the tree twinkle or glow.

On April 22, 2003, Customs issued NY J83527, holding that the item was classified in subheading 6702.90.65, HTSUS, which provides for “[a]rtificial flowers, foliage and fruit and parts thereof; articles made of artificial flowers, foliage or fruit: [o]f other materials: [o]ther: [o]ther.” You contend that the tree is properly classified under heading 9505, HTSUS, which provides, in pertinent part, for “[f]estive, carnival or other entertainment articles”

Pursuant to section 625(c), Tariff Act of 1930 (19 U.S.C. 1625(c)), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act, Pub. L. 103-182, 107 Stat. 2057, 2186 (1993), notice of the proposed revocation of NY J83527, as described below, was published in the Customs Bulletin on January 28, 2004. No comments were received in response to the notice.

ISSUE:

Whether the subject tree is properly classified as artificial foliage in heading 6702, HTSUS, or as a festive, carnival or other entertainment article under heading 9505, HTSUS.

LAW AND ANALYSIS:

Merchandise is classifiable under the Harmonized Tariff Schedule of the United States (HTSUS) in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that classification shall be determined according to the terms of the headings and any relative section or chapter notes and, provided such headings or notes do not otherwise require, according to the remaining GRIs 2 through 6. The Explanatory Notes (EN) 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.

The HTSUS provisions under consideration are as follows:

Artificial flowers, foliage and fruit and parts thereof; articles made of artificial flowers, foliage or fruit:

6702.90 Of other materials:

Other:

Other

Festive, carnival or other entertainment articles, including magic tricks and practical joke articles; parts and accessories thereof:

Articles for Christmas festivities and parts and accessories thereof:

Christmas Ornaments:

Other:

9505.10.25 Other

In Midwest of Cannon Falls, Inc. v. United States, 20 CIT 123 (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 guidelines for classification of goods in the heading. According to the Midwest guidelines, merchandise is classifiable as a festive article under heading 9505, HTSUS, when the article, as a whole:

Is not predominately of precious or semiprecious stones, precious metal or metal clad with precious metal;

Functions primarily as a decoration or functional item used in celebration of, and for entertainment on, a holiday; and

Is associated with or used on a particular holiday

The standard set forth in Midwest has been affirmed, in pertinent part, through the holding in Park B. Smith, Ltd. v. United States, Slip Op. 2001-63 (Ct. Int’l Trade 2001), aff’d in part, vacated in part, 347 F.3d 922, (Fed. Cir., 2003) (hereinafter Park). In Park, the United States Court of Appeals for the Federal Circuit held that articles with symbolic content associated with a particular recognized holiday, such as Christmas trees, meet the Midwest criteria and are prima facie classifiable as festive articles under heading 9505, HTSUS.

In addition to the guidelines set forth in Midwest, general criteria for determining “class or kind” with respect to classification were 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). Those criteria include the general physical characteristics of the article, the expectation of the ultimate purchasers, the channels, class or kind of trade in which the item moves, the environment of the sale (accompanying accessories and the manner in which the item is advertised and displayed), the use in the same manner as merchandise which defines the class, the economic practicality of so using the import, and recognition within the trade of this use.

In considering the Midwest standards, the item in question is not predominately of precious or semiprecious stones, precious metal or metal clad with precious metal. It is intended by the manufacturer to represent a tree, as evidenced by both its shape and color. Furthermore, the item is decorated with colored lights at the ends of its branches, which, when power is turned on, glow and twinkle like those commonly associated with Christmas trees. Although trees may be adorned with blinking lights during holidays other than Christmas, it seems apparent that an evergreen shaped artificial tree with colored and blinking lights is representative, and intended to be, a Christmas tree. Customs believes that a tree can be decorated to a greater or lesser degree and still be considered a festive article for purposes of being classified under heading 9505, HTSUS. We note that in prior rulings, Customs has held that an evergreen shaped artificial tree that is decorated with just one type of ornamentation, e.g., lights or acrylic beads, has been recognized as a Christmas tree under heading 9505, HTSUS. See NY J84354 dated May 16, 2003 and NY G88387 dated April 2, 2001.

In further considering the general criteria as set forth in Carborundum, the packaging in which the item is sold advertises it as “Twinkle,Twinkle Little Tree,” and indicates its usefulness as a Christmas decoration for use around the house. Moreover, the item will be sold in Meijer’s Trim-A-Tree department, and only for the duration of the Christmas holiday season. It does not appear likely that the item has any utility outside of decorative purposes during the Christmas season because the consumer perceives it as an artificial Christmas tree, which is an accepted symbol of a recognized holiday.

Based on the above analysis, we conclude that the item is an artificial Christmas tree and therefore classified in subheading 9505.10.25, HTSUS, as: “ [f]estive, carnival or other entertainment articles: [a]rticles for Christmas festivities and parts and accessories thereof: [c]hristmas ornaments: [o]ther: [o]ther.”

HOLDING:

The item at issue herein is classified in subheading 9505.10.25, HTSUS, as “[f]estive, carnival or other entertainment articles: [a]rticles for Christmas festivities and parts and accessories thereof: [c]hristmas ornaments: [o]ther: [o]ther.”

EFFECT ON OTHER RULINGS:

NY J83527 is REVOKED. In accordance with 19 U.S. C. 1625(c), this ruling will become effective 60 days after publication in the Customs Bulletin.

Sincerely,

Myles B. Harmon, Director
Commercial Rulings Division

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