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HQ 965126




May 9, 2002

CLA-2 RR:CR:GC 965126 KBR

CATEGORY: CLASSIFICATION

TARIFF NO.: 7323.91.50

Port Director
U.S. Customs Service
1000 2nd Avenue
Seattle, WA 98104-1019

RE: Protest 3001-01-100147; Christmas tree stands

Dear Port Director:

This is our decision on Protest 3001-01-100147, filed by counsel on behalf of Ace Hardware Corp., concerning the classification, under the Harmonized Tariff Schedule of the United States (HTSUS), of cast iron Christmas tree stands. The goods were entered in May and July, 2000, and the entries were liquidated on February 9, 2001. This protest was timely filed on May 10, 2001.

FACTS:

The protest concerns the classification of three models of cast iron Christmas tree stands. The stands are made of a cylindrical base with screws which can be tightened onto the trunk of a tree. A decorated support base is attached to the cylinder to stabilize it. Each stand has a basin for holding water. The diameter of each stand is from 14 inches to 18 inches, is designed to hold live Christmas trees of up to 7 feet or 9 feet tall, with a trunk approximately 6 inches to 6 ½ inches in diameter and can hold 2.5 to 3 quarts of water, depending on the model. The support base of each stand is painted and decorated in one of three designs: holly berries, poinsettias or a “deck the halls” design.

At the time of entry the importer originally claimed the Christmas tree stands should be classified under subheading 7325.10.00, HTSUS. Customs liquidated the articles under subheading 7323.91.50, HTSUS. The protestant argues the articles should be classified under subheading 8306.29.00, HTSUS.

ISSUE:

What is the classification of the Christmas tree stands?

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). The systematic detail of the HTSUS 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.

In interpreting the headings and subheadings, Customs looks to the Harmonized Commodity Description and Coding System Explanatory Notes (EN). Although not legally binding, they provide a commentary on the scope of each heading of the HTSUS. It is Customs practice to follow, whenever possible, the terms of the ENs when interpreting the HTSUS. See T.D. 89-90, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

The HTSUS provisions under consideration are as follows:

7323 Table, kitchen or other household articles and parts thereof, of iron or steel; iron or steel wool; pot scourers and scouring or polishing pads, gloves and the like, of iron or steel:

Other:

7323.91 Of cast iron, not enameled:

7323.91.50 Other

7325 Other cast articles of iron or steel:

7325.10.00 Of nonmalleable cast iron

8306 Bells, gongs and the like, nonelectric, of base metal; statuettes and other ornaments, of base metal; photograph, picture or similar frames, of base metal; mirrors of base metal; and base metal parts thereof:

Statuettes and other ornaments, and parts thereof:

8306.29.00 Other

We note that while subheading 9505.10, HTSUS, provides for articles for Christmas festivities and parts and accessories thereof, the ENs for 95.05 states that “This heading also excludes (d) Christmas tree stands (classified according to constituent material).” Therefore, Customs has found that the Christmas tress stands are classifiable according to their constituent material as a household article. Customs has consistently held that Christmas tree stands of iron or steel should be classified in heading 7323, HTSUS. See NY E86238 (September 20, 1999), NY 884461 (April 26, 1993); NY 892044 (November 12, 1993).

In spite of these rulings, the protestant argues that the articles should be classified under heading 8306, which covers, in pertinent part, statuettes and other ornaments. Protestant cites EN 83.06 (B) which states, in pertinent part, as follows:

This group comprises a wide range of ornaments of base metal of a kind designed essentially for decoration, e.g. in homes, offices, assembly rooms, places of religious worship, gardens.

It should be noted that the group does not include articles of more specific headings of the Nomenclature, even if those articles are suited by their nature or finish as ornaments.

The group covers articles which have no utility value but are wholly ornamental, and articles whose only usefulness is to contain or support other decorative articles or to add to their decorative effect, for example:

Busts, statuettes, and other decorative figures; ornaments (including those forming parts of clock sets) for mantelpieces, shelves, etc. (animals, symbolic or allegorical figures, etc.);sporting or art trophies (cups, etc.); wall ornaments incorporating fittings for hanging (plaques, trays, plates, medallions other than those for personal adornment); artificial flowers, rosettes and similar ornamental goods of cast or forged metal (usually or wrought iron); knick-knacks for shelves or domestic display cabinets.

Table-bowls, vases, pots, jardiniéres (including those of cloisonné enamel).

The group also includes, in the circumstances explained below, certain goods of the two following categories even though they have a utility value:

Household or domestic articles whether they are potentially covered by specific headings for such goods (i.e. headings 73.23). These household or domestic articles are generally designed essentially to serve useful purposes, and any decoration is usually secondary so as not to impair the usefulness. If, therefore, such decorated articles serve a useful purpose no less efficiently than their plainer counterparts, they are classified as domestic goods rather than in this group. On the other hand, if the usefulness of the article is clearly subordinate to its ornamental or fancy character, it should be classified in this group, for example, trays so heavily embossed that their usefulness is virtually nullified; ornaments incorporating a purely incidental tray or container usable as a trinket dish or ash-tray; and miniatures having no genuine utility value (miniature kitchen utensils).

The protestant relies on the language concerning the “only usefulness is to contain or support other decorative articles”, and believes the Christmas tree stands is described within this language. The protestant cites HQ 957413 (March 31, 1995), involving the classification in heading 8306, HTSUS, of a wrought iron pedestal intended to be combined with a glass vessel which will be used to hold an object for display such as flowers, candles, or wine bottles. Protestant also cites HQ 955040 (January 28, 1994) involving the classification in heading 8306, HTSUS, of bud vases made of base metal and silver or gold plated.

However, we believe that the ENs should be read in total. We do not believe that the Christmas tree stand is substantially similar to the other articles discussed in the EN. Further, we find that the Christmas tree stand is essentially a “useful” article, not decorative. We note that the stand is usually not visible, being covered or visually obstructed by the Christmas tree limbs and/or by a tree skirt. Therefore, although the Christmas tree stand may be decorated, its decoration is clearly subordinate to its usefulness. It also has more than one useful purpose. It is used to hold up the Christmas tree and also to provide a container to hold water for the tree. Unlike a “vase” which is included in the EN for 83.06, and may contain water, in that situation it is the vase itself which is the decorative article. Here, the Christmas tree stand is not the decorative article itself, but whose usefulness and commercial designation is as a support for a tree. The Christmas tree stand has another useful purpose, that of providing water for a tree. The EN discusses the scope of the legal terms “statuettes and other ornaments.” Tree stands are not known by these terms.

Christmas tree stands are classifiable in subheading 7323.91.50, HTSUS, which provides for table, kitchen or other household articles and parts thereof, of iron or steel, other.

HOLDING:

Christmas tree stands are classifiable in subheading 7323.91.50, HTSUS, which provides for table, kitchen or other household articles and parts thereof, of iron or steel, other.

The protest should be DENIED. In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, 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 or entries in accordance with the decision must be accomplished prior to mailing the decision.

Sixty days from the date of the decision, the Office of Regulations and Rulings will make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.gov, by means of the Freedom of Information Act, and other methods of public distribution.

Sincerely,

John Durant, Director
Commercial Rulings Division


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