# **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:

1)  Forty-eight inch long branches of holly leaves with red berries;

2)  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:

6702. Artificial flowers, foliage and fruit and parts thereof; articles
      made of artificial flowers, foliage or fruit:

      10. Of plastics:

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

> \* \* \* \* \* \*

9505. Festive, carnival or other entertainment articles, including magic
      tricks and practical joke articles; parts and accessories thereof:

      10. 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*:

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

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

3.  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:

(1) 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.

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

(3) 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](http://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](http://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