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HQ 087147


February 28, 1991

CLA-2 CO:R:C:G 087147 SLR

CATEGORY: CLASSIFICATION

TARIFF NO.: 4602.90.0000

Joel K. Simon, Esq.
Serko & Simon
One World Trade Center
Suite 3371
New York, NY 10048

RE: Reconsideration of NYRL 850425 of March 28, 1990; Halloween Basket Witch and Basket Scarecrow

Dear Mr. Simon:

This ruling is in response to your letter of May 11, 1990, on behalf of your client, Russ Berrie and Company, requesting the reconsideration of New York Ruling Letter (NYRL) 850425. In that ruling, various ornamented baskets were classified in subheading 4602.90.0000, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), the provision for basketwork, wickerwork and other articles, made directly to shape from plaiting materials, other. Samples were provided for our examination.

FACTS:

The submitted samples are ornamented baskets made of plaited plastic monofilament over one millimeter in cross-sectional dimension. The witch basket features, on the upper portion of one of its sides, a plush-pile (stuffed animal like) fabric representation of a witch's head, with textile arms stretching from the back of the basket to its handle. Two plush shoes are attached to the lower portion of the other side, such that the basket represents the witch's torso. The scarecrow basket is decorated similarily with plush textile scarecrow head, arms, and feet.

In your letter, you maintained that the subject baskets were classifiable as festive articles in subheading 9505.90.6000, HTSUSA. This position was once again presented to us during a conference held here at Headquarters on October 30, 1990. Your submission of December 11, 1990, followed.

ISSUE:

Whether the ornamented baskets are classifiable as baskets or as festive articles under the HTSUSA.

LAW AND ANALYSIS:

Classification of merchandise under the HTSUSA is in accordance with the General Rules of Interpretation (GRI's), taken in order. GRI 1 provides that classification is determined according to the terms of the headings and any relative section or chapter notes.

Heading 9505, HTSUSA, provides, in pertinent part, for "[f]estive, carnival or other entertainment articles." The Explanatory Notes, which represent the official interpretation of the tariff at the international level, offer guidance in understanding the headings. The Explanatory Note to heading 9505 indicates 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.

As stated in HRL 085276 of November 8, 1989, articles classifiable in heading 9505 tend to have no other function than decoration. While utilitarian articles may be classifiable in heading 9505, HTSUSA, they must, as a class, be holiday related.

Heading 9505 is generally regarded as a use provision. Consequently, Additional U.S. Rule of Interpretation 1(a) must be reviewed. That rule indicates that:

In the absence of special language or context which otherwise requires--
(a) a tariff classification controlled by use (other than actual use) is to be determined
in accordance with the use in the United States at, or immediately prior to the date of importation, of goods of that class or kind to which the imported goods belong, and the controlling use is the principal use.

While the instant merchandise displays Halloween motifs, baskets per se do not belong to a class of merchandise whose principal use is festive. Consequently, the witch and scarecrow baskets are not classifiable as festive articles in heading 9505.

Since proper classification cannot be determined by applying GRI 1, 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 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." As the subject baskets are made of two different materials (and, thus, classifiable in two separate headings: heading 4602, HTSUSA, for basketwork, wickerwork, and other articles, made directly to shape from plaiting materials; and heading 6307, HTSUSA, for other made up articles of textile materials), GRI 3 must be consulted.

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 then their essential character. The Explanatory Notes to GRI 3(b) indicate that "essential character" may be determined by considering "the nature of the material or component, its bulk, quantity, weight or value, or by the role of the constituent material in relation to the use of the goods."

The role that the basket plays in relation to the use of each article strongly suggests that the basket represents 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 textile figures play a subsidiary function; they serve to ornament each basket. Based on these facts, the basket gives the subject merchandise its essential character.

HOLDING:

The merchandise in issue is classifiable in subheading 4602.90.0000, HTSUSA, which provides for basketwork, wickerwork and other articles, made directly to shape from plaiting materials or made up from articles of heading 4601; articles of loofah: other. The applicable rate of duty is 5.3 percent ad valorem.

NYRL 850425 of March 28, 1990 is affirmed.

Sincerely,

John Durant, Director

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