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