CLA-2 RR:TC:FC 958523 ALS
Mr. Neil Smith
United Customs Brokers
420 Rue Notre Dame O
Montreal, Quebec
Canada H2Y 2G6
RE: Reconsideration of New York Ruling Letter (NYRL) 806789, dated March 9, 1995, Concerning a Basket Filled with Bath Items from the United Kingdom (UK)
Dear Mr. Smith:
This is in reference to your request for reconsideration of the subject ruling which held that a woven basket imported with various bath items was not classifiable as a set.
FACTS:
The items under consideration are a woven basket composed of bamboo fibers, measuring 12 inches in diameter, filled with 4 bottles of foaming bath essence, 4 bottles of massage lotion, 2 bath salt cubes, 6 bath pearls, 4 shaped colored soaps, 1 synthetic sponge in the shape of a watermelon wedge, and 1 plastic nail brush. The ruling for which reconsideration was requested held that the various bath items did not constitute a set as specified in General Rule of Interpretation (GRI) 3(b) and that the basket does not meet the requirements of GRI 5 and, therefore, it is separately classifiable.
ISSUE:
Whether a woven basket filled with a variety of bath items constitutes a set in accordance with the GRI's or whether the items are separately dutiable?
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LAW AND ANALYSIS:
Classification of merchandise under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) is governed by the GRI's taken in order. GRI 1 provides that the classification is determined first in accordance with the terms of the headings and any relative section and chapter notes. If GRI 1 fails to classify the goods and if the headings and legal notes do not otherwise require, the remaining GRI's are applied, taken in order.
The product under consideration consists of items classifiable under 7 different headings of the HTSUSA. The merchandise is, therefore, classifiable pursuant to GRI 3(a) which explains, in pertinent part, that goods which are classifiable under 2 or more headings are classified under the heading which provides the most specific description of the good. However, all such headings are regarded as equally specific when each refers to only part of the items in either a composite good or a set put up for retail sale. The Explanatory Notes (EN) to the Harmonized System, which represent the view of the international classification experts, explains, in pertinent part, in EN IX to GRI 3(b), that composite goods include not only those in which the components are attached to each other to form a practically inseparable whole, but also those with separable component which are adapted to each other and are mutually complementary insofar that together they form a whole which would not normally be offered for sale in separate parts. Since the bath items and woven basket, together, do not form a practically inseparable whole, and, although forming a whole, the subject bath items and basket would normally be sold separately, the product does not appear to fit the description of a composite good.
In accordance with EN X to GRI 3(b), the product does not qualify as a set. Although it meets criteria (a) since at least 2 of the items are classifiable in different headings and (c) since the product is ready for direct sale without repacking, it fails criterion (b) since it does not consist of items put up together to meet a particular need or carry out a specific activity. While the bath items relate to the care of human skin or nails, the basket does not so relate. The product fails as a set and composite good. Thus, we return to GRI 1 to classify each item separately in its own appropriate heading, unless the basket is considered a container or packing material for the bath items.
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We next considered whether the basket is classifiable with the bath items. It is not a container "specially shaped or fitted to contain," specifically, the bath items, nor is it a kind of container normally sold with such bath items. See GRI 5(a). Additionally, the basket is not a packing material or container normally used for packing these bath items. In fact, it is clearly suitable for a multitude of uses and for repetitive use. See GRI 5(b). We note that baskets of the type in question are continuously imported empty to be sold for a myriad of uses and that they can be found for sale empty in a variety of commercial establishments. They come in many sizes, shapes, and materials. In other words, the baskets are articles of commerce for general use which are capable of holding items but are not packing containers. Accordingly, the baskets are not containers or packing material covered by GRI 5 and are not classified together with the bath items, but rather, are classified in their own appropriate heading.
HOLDING:
Woven bamboo baskets filled with bath items are classifiable and subject to a general rate of duty, as follows,(as specified in NYRL 806789, except as to items classified in subheading 3307.30.5000, HTSUSA):
Item Subheading General Duty Rate
Massage Lotion 3304.99.0000 3.9 percent ad valorem
Bath Salt Cubes 3307.30.1000 5.8 percent ad valorem
Bath Pearls 3307.30.5000 4.9 percent ad valorem
Foaming Bath Essence 3307.30.5000 4.9 percent ad valorem
Soaps 3401.11.5000 0.9 cent per kilo plus
2.9 percent ad valorem
Sponge 3924.90.5500 3.4 percent ad valorem
Basket 4602.10.0900 10 percent ad valorem
Nail Brush 9603.28.4090 7 percent ad valorem
plus 0.2 cents each
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Certain of the items, as noted in NYRL 806789, may be subject to the regulations of the Food and Drug Administrations.
NYRL 806789 is affirmed.
Sincerely,
John Durant, Director
Tariff Classification
Appeals Division