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HQ 085276


November 3, 1989

CLA-2 CO:R:C:G: 085276 DPS

CATEGORY: CLASSIFICATION

TARIFF NO.: 4602.90.0000, 9503.41, 9505.90.6000

Ms. Linda A. DiPietro
Price Waterhouse
Arco Center
200 Oceangate
Suite 600
Long Beach, California 90802

RE: Ornamented Baskets

Dear Ms. DiPietro:

Your letter of July 6, 1989, to our San Pedro office, on behalf of your client, Fact Games Ltd., has been referred to this office for reply concerning the classification of various ornamented baskets under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). A sample of a "Bunny" basket was included with your request along with photographs of other styles of baskets your client plans to import from Korea.

FACTS:

The baskets at issue are described as being constructed of plastic and ornamented with plush-pile features of various characters, which include: a bunny, a duck, a pumpkin, a cat, a ghost, Santa Claus, a snowman, a reindeer, a Nutcracker soldier and an elf. Attached to one side of the basket are plush-pile (stuffed animal-like) fabric heads and arms of the characters, the arms often being attached to the handle or rim of the basket. The feet of the character are attached on the other side, such that the basket represents the torso of the character.

The basket is made of a plastic monofilament with an approximate diameter of 3 mm. Metal wire inserted into the monofilament is used along the rim, handle and ribs of the basket to give it strength and stability.

The importer states that the baskets are intended for use during the Easter, Halloween and Christmas holidays, because the figures which ornament the baskets are commonly associated with such holidays. Fact Games Ltd. claims that the subject baskets should be classified as festive, carnival or other entertainment articles, other, under subheading 9505.90.6000, HTSUSA.

ISSUES:

(1) Whether the subject merchandise is considered to be a festive article, classifiable under subheading 9505.90, HTSUSA.

(2) If not considered to be a festive article, how are the articles classified.

LAW & ANALYSIS:

The General Rules for the Interpretation of the Harmonized System (GRI's) govern classification under the Harmonized Tariff Schedule. According to GRI 1, the primary consideration in determining whether merchandise should be classified in a heading should be given to the language of the heading and any relevant chapter or section notes, and, provided such headings or notes do not otherwise require, according to the remaining GRI's, taken in order.

The Explanatory Notes to the HTSUSA, which constitute the official interpretation of the tariff at the international level, provide further guidance in determining the scope of each provision. With regard to Heading 9505, HTSUSA, the provision for festive articles, Explanatory note 95.05, at p. 1590, states 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.

(2) Articles traditionally used at Christmas festivities, e.g., artificial Christmas trees (these are sometimes of the folding type), nativity scenes, Christmas crackers, Christmas stockings, imitation yule logs.

...

For the most part, the items described above which fall under Heading 9505, HTSUSA, tend to have no function other than decoration.

It is Customs' position that an article by its shape, design, ornamentation and appropriate use in connection with a recognized festive holiday, is an article that falls under Heading 9505, HTSUSA. Here, the subject baskets are ornamented, but function primarily as baskets. With the exception of Easter, baskets per se are not identified with any particular holiday. And, although some of the figures attached to the baskets depict characters which are commonly identified with certain holidays (Santa Claus, Cat-Witch and Jack O'Lantern), baskets have no particular relevance to those holidays. The figures' presence on the baskets is not dispositive of their classification as festive articles. Upon review of the relevant Explanatory Notes and an examination of the submitted sample, Customs' position is that the subject baskets are not classifiable under the festive article provisions of Heading 9505, HTSUSA.

Because proper classification cannot be determined by applying GRI 1 alone, reference to the subsequent GRI's is necessary. GRI 2 contains two clauses, the second of which pertains to mixtures or combinations of a material or substance, and goods consisting of two or more materials or substances. GRI 2(b) further provides: "The classification of goods consisting of more than one material or substance shall be according to the principles of Rule 3." Because the subject merchandise consists of baskets constructed of plastic plaiting material and plush- pile acrylic stuffed figures, each of which is provided for separately in the HTSUSA (subheading 4602.90 provides for basketwork, wickerwork and other articles, other, made directly to shape from plaiting materials, subheading 9503.41 provides for stuffed toys representing animals or non-human creatures), the principles of GRI 3 must be applied to determine the proper classification of the subject ornamented baskets.

Here, the two headings at issue refer to part only of the subject baskets, and, according to GRI 3(a) are to be regarded as equally specific, thereby making resort to GRI 3(b) necessary.

According to GRI 3(b), mixtures and composite goods consisting of different materials, or made up of different components, shall be classified as if they consisted of the material or component which gives them their essential character. The factor that determines the essential character of an article varies amongst different types of articles. It may be the nature of the material or component, its weight, value, bulk or quantity, or its role in relation to the use of the goods.

The role that the basket plays in relation to the use of the article, along with its weight and bulk, strongly suggests that the basket imparts the essential character of the subject merchandise. The basket is the structure upon which the various decorative figures are mounted, and it functions as a container. The figures play a subsidiary function; they serve to ornament the basket. Based on these facts, the basket gives the subject merchandise its essential character.

HOLDING:

In accordance with the rationale set forth above, the subject ornamented baskets are classifiable as basketwork, wickerwork and other articles, made directly to shape from plaiting materials, other, under subheading 4602.90.0000, HTSUSA. Items classified under this subheading are subject to a duty rate of 5.3 percent ad valorem.

Sincerely,

John Durant, Director
Commercial Rulings Division

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