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HQ 967237





September 9, 2004

CLA-2 RR:CR:GC 967237 NSH

CATEGORY: CLASSIFICATION

TARIFF NO.: 6702.10.2000

Area Director
JFK International Airport c/o Chief, Liquidation and Protest Branch Building 77
Jamaica, NY 11430

RE: Protest 4701-04-100248; Artificial foliage

Dear Area Director:

This is our decision on Protest 4701-04-100248, filed on behalf of Trim Corporation, against your classification, under the Harmonized Tariff Schedule of the United States (HTSUS), of artificial holly leaves branches with red berries and needle pine branches. The entries under protest were liquidated on January 30, 2004, under subheading 6702.10.20, HTSUS, and this protest was timely filed on March 24, 2004.

FACTS:

The merchandise at issue is imported incomplete into the United States and are intended to be displayed as decorative Christmas trim items upon assemblage. The goods, known as “stems” and constructed of plastic, consist of two types:

Forty-eight inch long branches of holly leaves with red berries; Thirty-nine inch long branches of needle pine

Protestant claims classification of the merchandise under subheading 9505.10.50, HTSUS, which provides for “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: Other: Other.”

ISSUE:

Whether the holly leaves with red berries and needle pine branches are classified as festive articles under heading 9505, HTSUS, or artificial foliage under heading 6702, HTSUS.

LAW AND ANALYSIS:

Merchandise is classifiable under the 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.

GRI 2(a) provides that any reference in a heading to an article shall be taken to include a reference to that article incomplete or unfinished, provided that, as entered, the incomplete or unfinished article has the essential character of the complete or finished article. It shall also include a reference to that article complete or unfinished (or falling to be classified as complete or furnished by virtue of this rule), entered unassembled or disassembled.

The Explanatory Notes (EN) to the Harmonized Commodity Description and Coding System represent the official interpretation of the tariff at the international level. The ENs, although neither dispositive or legally binding, facilitate classification by providing a commentary on the scope of each heading of the HTSUS, and are generally indicative of the proper interpretation of these headings. See T.D. 89-90.

The HTSUS provisions under consideration are as follows:

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

Of plastics:

Assembled by binding with flexible materials such as wire, paper, textile materials, or foil, or by gluing or by similar methods

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:

Other:

9505.10.50 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

In contrast, heading 6702, HTSUS, provides for artificial foliage and EN 67.02 states, in pertinent part:

This heading covers:

Artificial flowers, foliage and fruit in forms resembling the natural products, made by assembling various parts (by binding, glueing, assembling by fitting into one another or similar methods). This category also includes conventional representations of flowers, foliage or fruit made up in the manner of artificial flowers, etc.

Parts of artificial flowers, foliage or fruit (e.g., pistils, stamens, ovaries, petals, calyces, leaves and stems).

Articles made of artificial flowers, foliage or fruit (e.g., bouquets, garlands, wreaths, plants), and other articles, for use as trimmings or as ornaments, made by assembling artificial flowers, foliage or fruit.

As pertains to the instant merchandise, Customs and Border Protection (CBP) notes that several items composed of artificial foliage satisfy the Midwest guidelines and are recognized as festive articles for the Christmas holiday. This includes evergreen branches, poinsettia, pine cone, pine needle leaves, holly leaves, laurel leaves, holly berries or mistletoe, which are incorporated into a wreath, centerpiece, candle ring, garland, swag or sprig. See NY I89773, dated January 27, 2003.

However, in HQ 950999, dated April 16, 1992, CBP held that an item otherwise classifiable as a festive article due to its representation of foliage commonly and traditionally associated with Christmas, was nonetheless classified within chapter 67 when imported as an incomplete product. The only exception to this rule is in regard to the classification of mistletoe sprays, which are generally displayed as a branch or sprig hung in a doorframe or lighting fixture, not requiring any additional assemblage. Subsequent to the issuance of this ruling, CBP has continued to uphold this standard. See HQ 958241, dated May 30, 1996, HQ 951416, dated November 25, 1993, HQ 953507, dated July 9, 1993, HQ 951520, dated October 31, 1992, and HQ 952015, dated September 8, 1992

In examining the instant merchandise, CBP notes that, as imported, both items do not conform to any of the recognized artificial foliage products recognized as festive articles, instead being raw materials that will then be used to construct decorative articles. Although we note that upon assemblage in the United States the merchandise will be joined with plastic green trees and garlands to conform to articles recognized as festive, specifically decorative Christmas trim items, we additionally note that Additional U.S. Rule of Interpretation 1(a), HTSUS, exempts consideration of the completed item for classification purposes. As such, CBP classifies merchandise according to the condition of merchandise when imported. See also United States v. Citroen, 223 U.S. 407 (1911). We additionally note that GRI 2(a) is inapplicable in this instance because CBP believes the incomplete merchandise at issue does not have the essential character of the complete or finished product. Therefore, notwithstanding the apparent satisfaction of the Midwest criteria upon assemblage of this merchandise, it is nevertheless exempt from classification under heading 9505, HTSUS. Therefore, classification is under subheading 6702.10.20, HTSUS.

HOLDING:

The holly leave branches with red berries and needle pine branches are classified under subheading 6702.10.2000, Harmonized Tariff Schedule of the United States Annotated, as “Artificial flowers, foliage and fruit and parts thereof; articles made of artificial flowers, foliage or fruit: Of plastics: Assembled by binding with flexible materials such as wire, paper, textile materials, or foil, or by gluing or by similar methods.” The 2003 general column one rate of duty is 8.4 percent ad valorem.

Duty rates are provided for the Protestant’s convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the World Wide Web at www.usitc.gov.

You are instructed to DENY the protest.

In accordance with the Protest/Petition Processing Handbook (CIS HB, January 2002, pp. 18 and 21), you are to mail this decision, together with the Customs Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry 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 make the decision available to CBP personnel, and to the public on the CBP Home

Page on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.

Sincerely,

Myles B. Harmon, Director
Commercial Rulings Division

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