HQ 0084564 - Decision on Application for Further Review of Protest No. 28096-001831; Classification of picnic baskets made of unspun fibrous vegetable materials with accompanying dinnerware - United States International Trade Commision Rulings

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HQ 084564

August 29, 1990

CLA-2 CO:R:C:G 084564 WAW

CATEGORY: CLASSIFICATION

TARIFF NO.: 706.21, 706.29, 772.06, 772.15

District Director of Customs
U.S. Customs Service
555 Battery Street
San Francisco, CA 94126

RE: Decision on Application for Further Review of Protest No. 28096-001831; Classification of picnic baskets made of unspun fibrous vegetable materials with accompanying dinnerware

Dear Sir:

This is a decision on an application for further review of a protest timely filed November 4, 1986, against your decision in the classification of two rattan picnic baskets and one fern basket which consist of unspun fibrous vegetable materials and their accompanying dinnerware under the Tariff Schedules of the United States Annotated (TSUSA). The following is a list of the four entries which are the subject of this protest:

Entry Entered Liquidated
86-2741730 4/2/86 9/12/86
86-2742535 4/24/86 9/12/86
86-2741028 2/27/86 8/29/86
86-2741727 3/27/86 8/29/86
all of which covered shipments of picnic baskets with accompanying dinnerware. Our decision follows.

FACTS:

The merchandise at issue in this case consists of three types of baskets. The first article is described as a white rattan basket, style number W857-433, which includes four plastic glasses, four plastic plates, and a set of stainless steel forks, spoons and knives for four persons. The second article is described as a rattan basket, style number W857-284, which includes four mugs and a set of plastic forks, spoons and knives for four persons. The third article is described as a fern basket with a tray, style number KP1-672-B, which includes four mugs, one cutting board, and a set of plastic forks, spoons and knives for four persons. The three sample articles are manufactured in Hong Kong.

At the time of entry of the goods, your office classified the two rattan baskets with the accompanying dinnerware as entireties under item 706.2100, TSUSA, which provides for luggage and handbags, whether or not fitted with bottle, dining, drinking, manicure, sewing, traveling, or similar sets; and flat goods: Of unspun fibrous vegetable materials: Of rattan or of palm leaf: Other, dutiable at a rate of 18.9 percent ad valorem. Customs classified the fern basket with accompanying dinnerware also as an entirety under item 706.2915, TSUSA, which provides for luggage and handbags, whether or not fitted with bottle, dining, drinking, manicure, sewing, traveling, or similar sets; and flat goods: Of unspun fibrous vegetable materials: Other: Other, dutiable at a rate of 5.7 percent ad valorem.

The protestant, however, maintains that the baskets with their accompanying dinnerware do not constitute an entirety for tariff purposes and should be separately classified. He believes that the sample rattan baskets are more properly classified under the provision for baskets and bags, of unspun fibrous vegetable materials, whether lined or not lined: Of rattan or of palm leaf, under item 222.42, TSUSA, and dutiable at a rate of 11.9 percent ad valorem. Similarly, the protestant believes that the sample fern basket is properly classified under the provision for baskets and bags, of unspun fibrous vegetable materials, whether lined or not lined: Other, under item 222.44, TSUSA, dutiable at a rate of 4.5 percent ad valorem.

ISSUE:

Whether the rattan and fern baskets with their accompanying dinnerware are classified as an "entirety" under the provision for luggage, whether or not fitted with bottle, dining, drinking, manicure, sewing, traveling, or similar sets under item 706.21 or 706.29, TSUSA, respectively or whether the articles should be separately classified.

LAW AND ANALYSIS:

In general, an article will be regarded as an entirety under the TSUSA when the components, upon being joined, form a new article which has a character or use different from that of any of the parts, or when one of the components or elements is predominant, the other parts being merely incidental to the predominant part. See E.M. Stevens Corp. v. United States, 49 Cust. Ct. 203 (1962). Conversely, where the article imported is a unit, but the components retain their individual identities and are not subordinated to the identity of the combination, duty will be imposed on the individual entities of the combination as though they had been imported separately. Donalds Ltd., Inc. v. United States, 32 Cust. Ct. 310 (1954).

In tariff classification matters, the statutory language itself may in some instances indicate that the imported merchandise is to be classified as an entirety. An example of such language is the term "fitted with" as it is found in the TSUSA provision which provides for luggage, whether or not fitted with bottle, dining, or similar sets. As this term has been interpreted by the Customs Court, it refers to something that is shaped to conform to the lines of something else or is something that is added or adapted to a named item. Thus, in the instant case, the question centers on the determination of whether the dinnerware is "fitted with" the basket or whether it merely accompanies the basket.

In Headquarters Ruling Letter (HRL) 079028, dated April 28, 1987, Customs held that a vinyl party bag with a textile coil zipper closure encircling the bag and accompanying plastic plates, glasses, forks, knives and spoons in shrink wrapped plastics should be classified separately. In this case, Customs stated that the plastic utensils and party bag shipped together and intended to be used together did not constitute an entirety for tariff purposes because the components of the set retain their individual identities and are not subordinate to the identity of the combination.

It is your position that the baskets with accompanying plastic dinnerware in the instant case should be classified as an entirety based on Headquarters Ruling Letter (HRL) 074374, dated November 26, 1984. In that ruling, Customs held that an insulated lunch bag and accompanying thermos constituted an entirety for tariff purposes and should be classified in item 706.62, TSUSA, as a drinking set. Customs stated that the lunch bag and thermos, in that case, were color coordinated and designed to be used in conjunction with each other as a merged unit, despite the fact that they could be sold separately or as a set. Moreover, in this case it was evident that the lunch bag and thermos unit were specially adapted and fitted to each other to indicate use together as an entirety.

Customs has previously held that picnic bags which are used to carry food and beverages while traveling are ejusdem generis with the exemplars set forth in headnote 2(a) of schedule 7, subpart D, which defines luggage. In Prepac, Inc. v. United States, 78 Cust. Ct. 108, C.D. 4694 (1977), the Customs Court held that plastic picnic bags having handles and zipper closures were properly classified under item 706.60, TSUSA, as luggage. The Court stated that the utilization of the language in the luggage provision, to include bags which are primarily fitted for dining and drinking is indicative of the intent of Congress to include within this subpart luggage or travel goods used for those purposes. Accordingly, the Court held that picnic bags which are designed primarily to carry food and beverages on a trip are encompassed within the luggage provision in item 706.60, TSUSA.

It is the determination of this office that the baskets with their accompanying dinnerware more closely resemble the party bag and plastic utensils which were the subject of HRL 079028, rather than the plastic lunch box and thermos which were the subject of HRL 074374. In the instant case, based on the limited information that has been provided to this office, it is our understanding that the utensils are not "fitted with" dining, drinking or similar sets as that term has been interpreted to mean in the tariff, since the utensils merely accompany the basket. All of the individual components may be used separately and retain their own commercial value apart from the entire unit.

Furthermore, the plastic utensils and plates are most likely shrink-packed separately from the basket and are merely presented together in the same retail carton and sold as a "set." Customs has previously determined, however, that articles bought and sold in sets are not necessarily entireties for tariff purposes, where the statute does not provide for sets, and each piece is an independent article of commerce and retains its own individual identity, name and character. There is no indication that the plastic utensils and plates are color coordinated with the baskets or designed to be used in conjuction with each other. Accordingly, in the instant case, the baskets and dinnerware units may be actually and commercially considered to constitute two or more individual entities, which even though imported joined or assembled together, nevertheless, retain their separate identities and are not subordinated to the identity of the combination. Thus, it is our position that the merchandise must be separately classified.

HOLDING:

Based on the foregoing analysis, it is our determination that the sample rattan and fern baskets with accompanying dinnerware do not constitute an entirety for tariff purposes and the articles should be separately classified. The rattan basket should be classified under item 706.2100, TSUSA, which provides for luggage and handbags, whether or not fitted with bottle, dining, drinking, manicure, sewing, traveling, or similar sets; and flat goods: Of unspun fibrous vegetable materials: Of rattan or of palm leaf: Other, dutiable at a rate of 18.9 percent ad valorem. The fern basket should be classified under item 706.2915, TSUSA, which provides for luggage and handbags, whether or not fitted with bottle, dining, drinking, manicure, sewing, traveling, or similar sets; and flat goods: Of unspun fibrous vegetable materials: Other: Other, dutiable at a rate of 5.7 percent ad valorem. The plastic plates should be separately classified under the provision for plates in item 772.06, TSUSA, dutiable at a rate of 7 percent ad valorem. The plastic glasses, knives, forks and spoons are classified as articles chiefly used for preparing serving, or storing food or beverages in item 772.15, TSUSA, dutiable at a rate of 3.4 percent ad valorem.

The protest should be denied except to the extent that the classification of the plastic plates under item 772.06, TSUSA and the classification of the plastic glasses, knives, forks, and spoons under item 772.15, TSUSA, results in a partial allowance. A copy of this decision should be attached to the Form 19 Notice of Action to be sent to the protestant.

Sincerely,

John Durant, Director

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