CLA-2 CO:R:C:G 087147 SLR
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.
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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
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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.
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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
Commercial Rulings Division