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HQ 957312

May 31, 1995

CLA-2 R:C:F 957312 GGD


TARIFF NO.: 6702.90.6500

District Director of Customs
P.O. Box 619050
1205 Royal Lane
Dallas/Fort Worth, Texas 75261

RE: Decision on Application for Further Review of Protest No. 5501-94-100184, filed July 7, 1994, concerning the classification of "Easter Trees"

Dear Sir:

This is a decision on a protest filed July 7, 1994, against your decision in the classification and liquidation of articles that were entered in December 1993. A sample article was submitted to this office for review.


You classified the items under subheading 6702.90.6500, Harmonized Tariff Schedule of the United States Annotated (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," with an applicable duty rate of 17 percent ad valorem.

Protestant claims that the goods should be classified under either subheading 9505.90.9060, HTSUSA, the provision for "Festive, carnival or other entertainment articles...: Other: Other, Other," with an applicable duty rate of 3.1 percent ad valorem; or subheading 6702.10.2000, HTSUSA, the provision for "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," with an applicable duty rate of 8.4 percent ad valorem. -2-

The sample, identified by style no. F-2430, measures approximately two feet in height. (Style no. F-1820, for which no sample was submitted, measures approximately one foot in height.) Each style consists of a bamboo basket which contains a plaster weighted base. Embedded in the base is a wire trunk from which emanate wire branches. The trunk and branches are wrapped with plastic strips in a variety of colors. Also included with each style is a small amount of plastic "grass," which is composed of plastic strip of less than 5 mm. in width.


Whether the articles are classified in subheading 9505.90.9060, HTSUSA, as festive articles; in subheading 6702.10.2000, HTSUSA, as artificial foliage of plastics; or in subheading 6702.90.6500, HTSUSA, as artificial foliage of other materials.


Classification under the HTSUS 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, HTSUS, 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. -3-

In general, merchandise is classifiable in heading 9505, HTSUS, 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 trees" 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 "Easter trees" - unlike decorative Easter eggs - are not traditionally associated with Easter. They are not the same types of articles cited in the ENs as examples of traditional, festive articles. In light of the above, the items are not classified under heading 9505, HTSUS, and must be classified elsewhere.

Among other items, heading 6702, HTSUS, 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. As noted above, several diverse materials comprise the "Easter trees," (i.e., the bamboo basket, plaster base, wire, plastic strip, and plastic "grass"). Although the plastic "grass" and plastic which wraps the wires is highly visible, it amounts to only a small fraction of the weight and value of each entire article. It would be inaccurate to classify the articles as artificial foliage of plastics. We thus find that the "Easter trees" are classified in subheading 6702.90.6500, HTSUSA, as artificial foliage of materials other than plastics, and other than feathers and man-made fibers. -4-


The "Easter tree" articles, identified by style nos. F-2430 and F-1820, are classified in 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.

The protest should be denied 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 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 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.


John Durant, Director

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