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HQ 085176


November 9, 1989

CLA-2 CO:R:C:G 085176 KWM

CATEGORY: CLASSIFICATION

TARIFF NO.: 4602.10.4000

Mr. Steven Sauer
Grand Basket Co., Inc.
53-06 Grand Avenue
Maspeth, N.Y. 11378

RE: Tariff classification of wicker hampers

Dear Mr. Sauer,

Your letter of July 5, 1989, addressed to our New York Office, requesting a tariff classification for wicker hampers, has been forwarded to this office for a response.

FACTS:

A photograph of the merchandise was included with your letter. It shows three items described as "hampers". Although three different sizes of goods appear in the photograph, the caption indicates that only two sizes are available. The smaller hamper is said to measure 16"L x 10"W x 21"H, and the larger 20"L x 14"W x 25"H.

The hampers appear to be constructed of wicker or a similar material, woven to form. The body of the hampers appears to be of one-piece construction, with circular handles attached to the sides. Lids or covers of identical or similar wicker material have been attached to the top of the hampers. The photographs do not reveal what material, if any, comprises the bottom of the hampers. The caption indicates that the hampers are lined, although the lining material is undetermined. Samples of the merchandise have been retained by the New York office.

ISSUE:

What is the proper classification of the merchandise under the Harmonized Tariff System of the United States Annotated?

LAW AND ANALYSIS:

Classification under the Harmonized Tariff Schedule of the United States (hereinafter "HTSUSA") is made in accordance with the General Rules of Interpretation (hereinafter "GRI(s)"). GRI 1 provides that classification is determined first according to the terms of the headings of the tariff schedule and any relative Section or Chapter notes, and then, if the headings and notes do not otherwise require, in accordance with the remaining GRIs, taken in order.

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 and any relevant Section or Chapter Notes. In applying GRI 1, our classification of the goods in this case is made in two general steps. First, we have identified the eligible Section(s) and Chapter(s) on a material-related or function-related basis. Second, we have selected the appropriate heading and subheading for classification, also on a material- and/or function-related basis, by applying GRI 1.

Section and Chapter

Although the Section and Chapter titles are not legally binding, they are helpful in determining eligible headings for classification purposes. In addition, the Legal Notes to the Sections and Chapters provide legally binding support for determining what goods should be included within the attendant headings.

As noted above, the items in this case appear to be constructed of wicker or a similar material. An examination of the material-related Chapters indicates that such goods may fall within Chapter 46, HTSUSA - Manufactures of Straw, of Esparto or of Other Plaiting Materials; Basketware and Wickerware. However, the Legal Notes to Chapter 46 state that:

2. This chapter does not cover: . . .

(e) Articles of Chapter 94 (for example, furniture, lamps and lighting fixtures)

Here, it is possible that the hampers in question fall within Chapter 94, HTSUSA, as furniture items. If so, they would be excluded from Chapter 46, as the note indicates.

Chapter 94, HTSUSA, encompasses, among other goods, furniture, including bedding, mattresses, cushions, etc. In reference to furniture goods, the Legal Notes provide that:

2. The articles (other than parts) referred to in headings 9401 to 9403 are to be classified in those headings only if they are designed for placing on the floor or on the ground.(Emphasis added)

In other words, for goods to be considered furniture within the specified headings, there is a threshold requirement that they be designed for placing on the floor or ground. However, this does not require that all goods which are placed on the floor be included in Chapter 94 headings. Such a distinction is important in this case, since the goods in question are designed for placement on the floor, but may be subject to classification elsewhere in the nomenclature.

Heading and Subheading

The initial determination which must be made here is whether or not the sample goods are considered furniture within the meaning of headings 9401 to 9403, HTSUSA. If so, they will be excluded from classification in Chapter 46, HTSUSA. Other than the threshold requirement set out above, the Legal Notes to Chapter 94, HTSUSA, do not provide any guidelines for making this determination. However, the Explanatory Notes indicate that Chapter 94 covers:

(A) Any "movable" articles (not included under other more specific headings of the Nomenclature) which have the essential characteristic that they are constructed for placing on the floor or ground, and which are used, mainly with a utilitarian purpose, to equip private dwellings, hotels, . . . (emphasis in the original)

The Explanatory Notes also include an extensive, although not exhaustive, listing of goods which are either included or excluded from Chapter 94. Although the Notes indicate that items of all sizes and uses may be included in Chapter 94, it is our opinion, based on the character and composition of these items, that they are not more than prima facie classifiable as furniture. Consequently, these goods are determined not to be "Articles of Chapter 94" for the purposes of the exclusionary Note (Legal Note 2(e) to Chapter 46). They may however, be found to be articles of Chapter 94 on the basis of other criteria.

Since the goods are not excluded from consideration within Chapter 46, there are two competing provisions within the tariff schedule under which these goods may be classified: 4602.10.4000 and 9403.80.3080, HTSUSA. When goods are prima facie classifiable under two or more headings, GRI 3(a) provides that:

The heading which provides the most specific description shall be preferred to headings providing a more general description.

The Explanatory Note to Chapter 94, HTSUSA, complements GRI 3(a) by providing that articles not included under more specific headings of the nomenclature may be classified as furniture. In the instant case, the terms of the competing subheadings are, in pertinent part:

4602.10.4000 - Basketwork, wickerwork and other articles, made directly to shape from plaiting materials . . .: Of vegetable materials:
Other: Of one or more of the materials, bamboo, rattan, willow or wood.

9403.80.3080 - Other furniture and parts thereof: Furniture of other materials, including cane, osier, bamboo, or similar materials: Of cane, osier, bamboo, or similar materials: Other

You have indicated that these goods are made, depending on the country of origin, of rattan, willow, or of a combination of rattan and other components specifically set out in subheading 4602.10.4000, HTSUSA, and the accompanying Chapter Notes. While the terms of subheading 9403.80.3080, HTSUSA, are sufficiently broad to include the sample goods within their coverage, it is the opinion of this office that the terms of HTSUSA subheading 4602.10.4000 specifically include these items. We have, therefore, classified these goods under subheading 4602.10.4000, HTSUSA, on the basis of relative specificity under GRI 3(a).

The Explanatory Notes to Chapter 46, HTSUSA, substantiate our decision when they provide, in pertinent part:

Subject to the exclusions specified in the General Explanatory Note to the Chapter, the heading covers:

(i) articles made directly to shape from plaiting materials; . . .

Such articles include:

(1) Baskets, panniers, hampers, and basketware containers of all kinds, whether or not fitted with rollers or castors, including fish baskets, creels and fruit baskets. . .

The sample goods are, in this case, specifically referred to by name in the Explanatory Notes. It has been suggested that the sample items should not be included in subheading 4602.10.4000, HTSUSA, because they are not of the same type referred to in the Explanatory Note. The gist of the argument is that, although the terms of the Note specifically refer to "hampers", the items described in the note are all of a smaller, more easily portable variety, and that the hampers in question do not fit that profile. We disagree. The list found in the Explanatory Notes is not legally binding; it is advisory only. In addition, while many of the items set out in the Explanatory Notes are smaller and easier to carry or transport than the sample goods, the list is not intended to be exclusive. Indeed, the terms of the Note are expansive: "basketware containers of all kinds, whether or not fitted with rollers or castors, . . ." (emphasis added), indicating that the heading was intended to include baskets or hampers of a larger size which would need rollers or castors to move about easily. Finally, we note that the picture provided with the request letter show handles on the sides of the hampers, presumably to facilitate their movement.

Lastly, we are aware of prior rulings by this office which classify goods of this type as furniture, albeit under the Tariff Schedule of the United States (hereinafter "TSUS"). We note that such rulings are informative, but are not binding toward rulings issued under the HTSUSA. Indeed, many HTSUSA rulings adopt positions directly contrary to TSUS rulings, solely on the basis that the HTSUSA terms require such treatment. In this case, we have chosen to disregard prior rulings under the TSUS, and classify these goods solely on the basis of the GRIs and the terms of the HTSUSA headings to provide uniform and consistent treatment for similar goods in the future, without attempting to reconcile past rulings which may be incompatible.

HOLDING:

After examining the terms of the tariff headings and the relevant Section and Chapter notes, it is the opinion of this office that the sample goods are classified under subheading 4602.10.4000, HTSUSA - Basketwork, wickerwork and other articles, made directly to shape form plaiting materials: Of vegetable materials: Other: Of one or more of the materials, bamboo, rattan, willow or wood. These goods are dutiable at the rate of 6.6% ad valorem.

John Durant, Director
Commercial Rulings Division

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