CLA-2 CO:R:G 086768 STB
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.
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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.
-3-
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,
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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
Commercial Rulings Division