HQ 0086768 - Christmas Basket - United States International Trade Commision Rulings

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HQ 086768

July 5, 1990

CLA-2 CO:R:G 086768 STB

CATEGORY: CLASSIFICATION

TARIFF NO.: 4602.10.1900

Joel K. Simon, Esq.
Serko & Simon, Counsellors at Law
One World Trade Center
Suite 3371
New York, N.Y. 10048

RE: Christmas Basket

Dear Mr. Simon:

This is in response to your inquiry of March 13, 1990, regarding the classification of four styles of ornamented baskets under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). A sample of a basket decorated with a textile toy soldier was included with the inquiry. Although you stated that pictures of the other styles would also be submitted, no pictures were included in the file received at this office; our New York office stated that they also did not receive the pictures.

FACTS:

The sample submitted is a small plaited basket made of fern with a handle. It measures approximately 6-1/2 inches from the bottom of the basket to the top of the handle. The basket itself has a diameter of 3 inches. A stuffed textile soldier head with arms is permanently attached to one end of the basket. Attached to the head is a red textile skirt which wraps completely around the outside of the basket. The skirt has stuffed feet or shoes attached to it at the other end of the basket. The other three baskets that are mentioned as being different styles of the same item number, item 2679, are decorated with a snowman, Santa Claus, and a teddy bear.

ISSUE:

1. Whether the subject merchandise is considered to be a festive article for tariff purposes.

LAW AND ANALYSIS:

The General Rules of Interpretation (GRI's) set forth the legal framework in which merchandise is to be classified under the HTSUSA. GRI 1 requires that classification be determined first according to the terms of the headings of the tariff and any relevant section or chapter notes and, unless otherwise required, 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, 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.

Here, the subject baskets do more than adorn; they can be used to hold candy, cookies and other such articles. The baskets are ornamented but they function primarily as baskets. With the exception of Easter, baskets per se are not identified with any particular holiday. Although the decorative figures and items on these baskets are meant to be associated with Christmas, these additions to the baskets are not dispositive of the classification of the baskets. These items, therefore, are not classifiable in Heading 9505.

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 fern and stuffed textile articles, each of which is provided for separately in the HTSUSA (subheading 4602.10.19 provides for basketwork, wickerwork and other articles, made directly to shape from plaiting materials, other; Headings 9502 and 9503 provide for stuffed dolls and toys), 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 consist 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, 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 provides the subject merchandise its essential character.

HOLDING:

The subject merchandise is properly classifiable in subheading 4602.10.19, HTSUSA, which provides for basketwork,
wickerwork and other articles, made directly to shape from plaiting materials...of vegetable materials, other. The applicable duty rate is 4.5% ad valorem.

Sincerely,

John Durant, Director

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