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HQ 967444




January 18, 2005

CLA-2 RR:CR:TE 967444 KSH

TARIFF NO.: 6307.90.9889; 9505.90.6000

Joanne Harmon
Cheryl Santos
CVS/ Pharmacy
One CVS Drive
Woonsocket, RI 02895

RE: Classification of “Easter Plush Basket”

Dear Mss. Harmon and Santos:

This is in reply to your letter dated September 30, 2004, in which you requested a ruling regarding the classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) of an “Easter Plush Basket”. Your request for classification was forwarded to Customs and Border Protection (CBP) Headquarters and upon review by the Office of Regulations and Rulings, the subject merchandise is classified in headings 6307 and 9505, HTSUSA, for the reasons set forth below.

One sample was submitted to this office for examination and was considered in conjunction with your request.

FACTS:

The merchandise at issue is identified as item number 305339. It is described as an “Easter Plush Basket.” The “Easter Plush Basket” comes in three assortments: one pink bunny, one white chick and one yellow chick. The submitted sample is a yellow chick basket that is covered by knit terry fabric and stuffed with fiber fill to give it shape in its torso and features similarly stuffed wings, feet, head, and tail, and a color coordinated top carrying handle consisting of a stiffener covered by woven fabric. The information provided by you indicates that the knit terry fabric is in chief weight of polyester. The basket It is designed with a flat bottom covered with woven fabric so it will stay upright when placed on a flat surface such as a table. The torso is open and measures 8 inches long by six inches wide by 3.5 inches in depth. The center open compartment measures 5 inches in length by 3.5 inches in width (at its widest point) by 3 inches in depth. The “Easter Plush Basket” will be market and sold during the Easter season.

ISSUE:

Whether the “Easter Plush Baskets” are classified in heading 9505, HTSUSA, as festive articles, heading 4202, HTSUSA, as travel, sports or similar bags, or heading 6307, HTSUSA, as other made up articles of textiles.

LAW AND ANALYSIS:

Classification under the HTSUSA is made in accordance with the General Rules of Interpretation (GRI). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative Section or Chapter Notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRI may then be applied. The Explanatory Notes (EN) to the Harmonized Commodity Description and Coding System, which represent the official interpretation of the tariff at the international level, facilitate classification under the HTSUSA by offering guidance in understanding the scope of the headings and GRI.

Classification within chapter 42, HTSUSA, is subject to Legal Note 1(l), which specifically notes that the chapter does not cover "Articles of chapter 95 (for example, toys, games, sports equipment)". Similarly, classification within chapter 95, HTSUSA, is subject to Legal Note 1(d), which excludes "Sports bags or other containers of heading 4202, 4303 or 4304". Two legal notes such as these do not mutually exclude each other, but rather instruct that classification be made in the one chapter that properly includes the article under consideration. See Headquarters Ruling Letter (HQ) 088665, dated June 14, 1991, and Avenues in Leather v. United States, 11 F. Supp. 2d 719 (CIT 1998), affirmed, 178 F.3d 1241 (CAFC 1999).

Note 1(l) to Section XI, HTSUSA, which covers textiles and textile articles, states that the section does not cover "Articles of textile materials of heading 4201 or 4202." Likewise Note 1(t) to Section XI, HTSUSA, provides that the section does not cover: "[a]rticles of chapter 95 (for example, toys, games, sports requisites and nets)[.]" Therefore, if the “Easter Plush” Bbaskets” are classifiable under heading 9505 or 4202, HTSUSA, they cannot be classified under Chapter 63, HTSUSA.

Heading 9505, provides, in pertinent part, for "[f]estive, carnival or other entertainment articles." The Explanatory Notes offer guidance in the interpretation of the headings. The Explanatory Note to Heading 9505 indicates that the heading covers:

Festive, carnival or other entertainment articles, which in view of their intended use are generally made of non-durable material. They include:

(1) Festive decorations used to decorate rooms, tables, etc. (such as garlands, lanterns, etc.); decorative articles for Christmas trees (tinsel, coloured balls, animals and other figures, etc.); cake decorations which are traditionally associated with a particular festival (e.g., animals, flags).

(2) Articles traditionally used at Christmas festivities, e.g., artificial Christmas trees, nativity scenes, nativity figures and animals, angels, Christmas crackers, Christmas stockings, imitation yule logs, Father Christmases.

The heading also excludes articles that contain a festive design, decoration, emblem or motif and have a utilitarian function, e.g., tableware, kitchenware, toilet articles, carpets and other textile floor coverings, apparel, bed linen, table linen, toilet linen, kitchen linen.

In Midwest of Cannon Falls, Inc. v. United States, 20 C.I.T. 123 (1996), aff’d in part, rev’d in part, 122 F.3d 1423, (Fed. Cir. 1997) (hereinafter Midwest), the court addressed the scope of heading 9505, HTSUS, specifically the class or kind of merchandise termed "festive articles," and provided guidelines for classification of goods in the heading. According to the Midwest guidelines, merchandise is classifiable as a festive article under heading 9505, HTSUS, when the article, as a whole:

Is not predominately of precious or semiprecious stones, precious metal or metal clad with precious metal;

Functions primarily as a decoration or functional item used in celebration of, and for entertainment on, a holiday; and

Is associated with or used on a particular holiday.

The “Easter Plush Baskets” are not predominately of precious or semiprecious stones, precious metal or metal clad with precious metal. They are functional, three-dimensional representations of a rabbit and chicks. [I wouldn’t go there. It has a short pointed beak, a duck has a flat long beak.]Although an Easter bunny is associated with Easter, chicks are not an accepted symbol of a recognized holiday. Moreover, the bunny basket will be used primarily as a functional item to collect, distribute, or display Easter eggs and/or candy. We conclude that, by application of the Midwest criteria, only the “Easter Bunny Basket” constitutes a festive article.

Inasmuch as the chick baskets are not classifiable in heading 9505, HTSUSA, consideration must be given to headings 4202, HTSUSA, and 6307, HTSUSA.

Heading 4202, HTSUSA, provides for:

Trunks, suitcases, vanity cases, attache cases, briefcases, school satchels, spectacle cases, binocular cases, camera cases, musical instrument cases, gun cases, holsters and similar containers; traveling bags, insulated food or beverage bags, toiletry bags, knapsacks and backpacks, handbags, shopping bags, wallets, purses, map cases, cigarette cases, tobacco pouches, tool bags, sports bags, bottle cases, jewelry boxes, powder cases, cutlery cases and similar containers, of leather or of composition leather, of sheeting of plastics, of textile materials, of vulcanized fiber or of paperboard, or wholly or mainly covered with such materials or with paper.

Additional U.S. Note 1 to Chapter 42 states:

For the purposes of heading 4202, the expression “travel, sports and similar bags” means goods, other than those falling in subheadings 4202.11 through 4202.39, of a kind designed for carrying clothing and other personal effects during travel, including backpacks and shopping bags of this heading, but does not include binocular cases, camera cases, musical instrument cases, bottle cases and similar containers.

In Totes, Incorporated v. United States, 18 C.I.T. 919, 865 F. Supp. 867 (1994), aff’d, 69 F.3d 495 (Fed. Cir. 1995), the Court of International Trade held that the essential characteristics and purposes of the heading 4202 exemplars are to organize, store, protect and carry various items. With respect to the broad reach of the residual provision for “similar containers” in heading 4202 by virtue of the rule of ejusdem generis, the Court found that the rule requires only that the imported merchandise possess the essential character or purpose running through all of the enumerated exemplars.

Easter baskets are not specifically named by the terms of heading 4202. Consequently, the chick Easter baskets are only classifiable in the heading if they are similar to one of the specifically enumerated articles.

The chick basket is an open container for transporting eggs or candy. It has no top closure to prevent the contents which may be contained in it from spilling. It is not designed to be used for a prolonged period of time. It is not specially shaped or fitted, e.g., in the manner of a musical instrument case, nor does it have compartments or pockets, as might, for example, a handbag. Nor is it similar to suitcases, school satchels or other forms of "luggage" which generally have some means of closure and are designed to carry personal effects during travel. In addition, the chick basket is readily distinguishable in size and construction from the type of tote bags that are similar to travel bags or shopping bags. Accordingly, the chick baskets are not similar to the named articles of heading 4202. See HQ 088784, dated December 5, 1991, determining that a log carrier (an open container for transporting logs or fire wood) was not similar to the named articles of heading 4202, HTSUS.

Heading 6307, HTSUSA, provides for other made up articles of textile materials. This heading is a “basket provision” for goods which cannot be classified more specifically in the nomenclature. As no other provision more specifically describes the submitted merchandise, the yellow and white chick “Easter Plush Baskets” are properly classified as other made up articles in subheading 6307.90.9989, HTSUSA. This is consistent with numerous other rulings on substantially similar merchandise including NY J86716, dated July 16, 2003, NY J87221, dated August 27, 2003, NY K87398, dated July 22, 2004, NY H82817, dated July 10, 2001 and NY K87730, dated July 28, 2004.

HOLDING:

The bunny “Easter Plush Basket is classified in subheading 9505.90.6000, HTSUSA, which provides for “Festive, carnival or other entertainment articles, including magic tricks and practical joke articles; parts and accessories thereof: Other: Other.” The rate of duty is free. The yellow and white chick “Easter Plush Baskets” are classified in subheading 6307.90.9889, HTSUSA, which provides for “Other made up articles, including dress patterns: Other: Other: Other, Other: Other." The general column one rate of duty is 7 percent ad valorem.

Due to the changeable nature of the statistical annotation (the ninth and tenth digits of the classification) and the restraint (quota/visa) categories, you should contact the local CBP office prior to importation of this merchandise to determine the current status of any import restraints or requirements.

Sincerely,

Myles B. Harmon, Director
Commercial Rulings Division

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