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HQ 958940

November 13, 1996

CLA-2 RR:TC:FC 958940 ALS


TARIFF NO.: 6702.90.6500

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

RE: Reconsideration of Headquarters Ruling Letter (HRL) 958411, Dated January 31, 1996, Regarding the Classification of a Leafless Deciduous "Easter Tree" With Ornaments.

Dear Mr. Stein:

This is reference to your written request and subsequent meeting concerning reconsideration of HRL 958411, which classified the subject tree in 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."


The article under consideration, as described in HRL 958411, is labeled an "Easter tree" and "resembles a leafless deciduous tree." It measures 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. We also note that the branches go out in a multidirectional manner from the trunk and that they of a curlicue design. We further note that the trunk is formed by a braiding of the wires at the base of the branches.


What is the classification of an "Easter tree" which is composed of metal wire wrapped with foil paper strips?


Classification of merchandise under the HTSUSA is governed by the GRI's taken in order. GRI 1 provides that the classification is determined first in accordance with the terms of the headings and any relative section and chapter notes. If GRI 1 fails to classify the goods and if the headings and legal notes do not otherwise require, the remaining GRI's are applied , taken in order.

Counsel has suggested that the subject article should be classified under the provision for festive articles, subheading 9505.90.6000, HTSUSA. In support thereof counsel has referenced 2 cases which are presently the subject of judicial review. We find that those cases, until finally adjudicated, are not the basis for the classification of merchandise. We find no other basis for altering our prior conclusion that the subject article is not classifiable as a festive article. We hereby affirm our prior ruling HRL 958411 as to that conclusion.

Counsel questions the propriety of classification of an article described as a leafless deciduous "Easter tree" of metal as "foliage" under subheading 6702.90.6500, HTSUSA. Counsel has submitted a number of lexicographic definitions of the term "foliage" and has noted that they all indicate that such term requires the presence of leaves. Some of the definitions indicate that the term "foliage" may be broader and include branches, stems, twigs, etc., in addition to the leaves. Counsel argues that the subject tree does not have leaves and that it, therefore, does not meet a basic requirement of foliage.

We do not agree with that conclusion. We note that the subject tree represents a type of tree which, in nature, has leaves during the growing season, a deciduous tree. The branches, as previously noted, are of a curlicue design, causing one to wonder whether they might be representations of conduplicate leaves. In this regard, we recognize that leaves take many forms in the natural world. They might, for example, be a broad leaf such as in the case of a maple tree, a needle in the case of an evergreen, or a prickly stem in the case of a cactus.

In any case we do not believe that the terms of the aforementioned subheading were intended to be narrowly construed so as to only include parts of a tree, trees only at a certain stage of growth or the branch of a tree, etc., from which the growth might emanate. To so construe the tariff provision would cause the tree, bush, etc. to be classified separately from its growth and under a provision less specific than that applicable to the item which has grown therefrom.

In this regard, we note heading 0604 of the Harmonized System which provides, as herein pertinent, for "Foliage, branches and other parts of plants, without flowers or flower buds...being of a kind suitable...for ornamental purposes..." is comparable to heading 6702 save that the former covers natural (but not live) products whereas the latter covers artificial products. Despite this and the fact that trees are not mentioned in heading 0604, trees are specifically listed thereunder, in subheading 0604.91.00, HTSUSA. We note that the Explanatory Notes (EN) to the Harmonized System as to heading 06.04, which represents the views of the international classification experts, specifically notes that "[T]he heading covers natural Christmas trees, provided that they are clearly unfit for replanting (e.g., root sawn off, root killed by immersion in boiling water)." We believe this to be synonymous with trees used for ornamental purposes and that the distinction to be drawn between these trees and the ones under consideration, is a distinction between natural and artificial. It has been concluded that both provisions are inclusionary provisions meant to cover a group of certain types of articles suitable for certain purposes, i.e., ornamental, and that they are not exclusionary provisions meant to cover only the portions of items.

While counsel has alternately suggested that the instant article should be classified in subheading 8306.29.0000, HTSUSA, as other ornamental articles of base metal, we have concluded that it is not necessary to consider that possible classification in light of the above conclusion.


Easter trees of base metal, which are 18 inches tall, whose trunk and branches are composed of wire wrapped with foil paper strips in a variety of colors, are classifiable in subheading 6702.90.6500, HTSUSA. That provision covers "Artificial flowers, - 4 -
foliage and fruit and parts thereof, articles made of artificial flowers, foliage or fruit: Of other materials: Other: Other." Merchandise so classified is subject to a general rate of duty of 17 percent ad valorem.

HRL 958411 is affirmed.


John Durant, Director
Tariff Classification

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