HQ 957312

May 31, 1995

CLA-2 R:C:F 957312 GGD

CATEGORY: Classification

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.

FACTS:

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.

ISSUE:

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.

LAW AND ANALYSIS:

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-

HOLDING:

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.

Sincerely,

John Durant, Director

Commercial Rulings Division