HQ H084609
CLA-2 OT:RR:CTF:TCM H084609 MG
Ms. Agie Ho
Toy-O-Rama International
Suite 708-9`
Wharf T & T Centre
Harbour City
#7 Cantoon Rosd, Tsimshaisui
Kowloon, Hong Kong
RE: Request for Binding Ruling; Classification; Decorative Easter Baskets
Dear Ms. Ho:
This letter is in response to your revised electronic ruling request dated October 28, 2009, on behalf of Dollar General Global Sourcing, in which you requested a binding ruling pertaining to the classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) of items you described as “Easter Plush Baskets” (“baskets”). Your request has been forwarded by the National Commodity Specialist Division (NCSD) in New York to this office for a response. An image of each basket was forwarded with your request. Two samples were submitted to this office for examination and were considered in conjunction with your request.
FACTS:
The merchandise at issue is identified as item number 76633. It is described as an “Easter Plush Basket.” The “Easter Plush basket” comes in four assortments: one pink bunny, one lavender bunny, one white lamb and one yellow chick. The baskets, which measure approximately 8 inches in diameter and 5 inches in depth, have rigid sides to keep the basket open and feature a flat covered bottom that allows them to stay upright when placed on a flat surface.
The submitted samples are plush textile covered baskets with two color coordinated fabric carrying handles with a basket in lieu of a torso. A fabric stuffed bunny or a lamb’s head, hands and feet are attached to the basket. The pink bunny features a mushroom on each foot while the white lamb depicts a decorated egg on each foot. As stated in your submission, the “Easter Plush Basket” will be sold at the Dollar General retail stores throughout the United States during the Easter season.
ISSUE:
Whether the "Easter Plush Baskets" are classified in heading 9505, HTSUSA, as festive articles or heading 6307, HTSUSA, as other made up articles of textiles.
Whether the “Easter Plush Baskets are eligible for duty-free treatment under subheading 9817.95.05, HTSUSA.
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 HTSUSA provisions under consideration are as follows:
6307 Other made up articles, including dress patterns: * * *
9505 Festive, carnival or other entertainment articles, including magic tricks
and practical joke articles; parts and accessories thereof:
* * *
9817.95.05 Articles classifiable in subheadings 3924.10, 3926.90, 6307.90, 6911.10, 6912.00, 7013.22, 7013.28, 7013.41, 7013.49, 9405.20, 9405.40 or 9405.50, the foregoing meeting the descriptions set forth below:
Utilitarian articles in the form of a three-dimensional representation of a symbol or motif clearly associated with a specific holiday in the United States:
* * *
Note 1 to Chapter 95, HTSUS, provides, in relevant part:
1. This chapter does not cover:
* * *
(v) Tableware, kitchenware, toilet articles, carpets and other textile floor coverings, apparel, bed linen, table linen, toilet linen, kitchen linen and similar articles having a utilitarian function (classified according to their constituent material). 1/ See subheading 9817.95
* * *
U.S. Note 1 to Chapter 98, HTSUSA, provides, in relevant part: The provisions of this chapter are not subject to the rule of relative specificity in general rule of interpretation 3(a). Any article which is described in any provision in this chapter is classifiable in said provision if the conditions and requirements thereof and of any applicable regulations are met.
In accordance note 1(v) to Chapter 95, HTSUSA, tableware, kitchenware and similar articles having a utilitarian function are classified by their constituent material.
Heading 6307, HTSUSA, provides for other made up articles of textile materials. This heading captures goods which cannot be classified more specifically in the nomenclature. As no other provision more specifically describes the submitted merchandise, the "Easter Plush Baskets" are properly classified as other made up articles in heading 6307, HTSUSA.
You have requested classification of the “Easter Plush Baskets” in
subheading 9817.95.05, HTSUSA. Once an article is classified using the GRIs and any pertinent section and chapter notes, consideration may be given to the special classification provisions, if appropriate. If an article is described by a provision of Chapter 98 and all applicable requirements are met, then the Chapter 98 provision and its duty rate prevail over the tariff rate from the international portion of the tariff. See Chapter 98, U.S. Note 1.
In the appeal of Midwest of Cannon Falls, Inc. v. United States, 20 Ct. Int’l Trade 123 (1996), aff’d in part, rev’d in part, 122 F. 3d 1423 (Fed. Cir. 1997) ("Midwest"), the Court set forth the test which, as synthesized in Park B. Smith, Ltd. v. United States, 25 Ct. Int’l Trade 506 (2001), aff’d in part, vacated in part, and remanded, 347 F. 3d 922 (Fed. Cir. 2003), reh’g denied (Fed. Cir. March 16, 2004) ("Park B. Smith"), requires both (1) that the article be closely associated with a festive occasion, and (2) that the article be used or displayed principally during a festive occasion such that use or display of the article at other times would be aberrant.
In the instant case, the “Easter Plush Baskets” will be used primarily as functional items to collect, distribute, or display Easter eggs and/or candy. They are closely associated with the Easter holiday and will be principally used during Easter. The “Easter Plush Baskets” which are utilitarian articles in the form of a three-dimensional representation of a symbol or motif clearly associated with a specific holiday in the United States are eligible for duty-free treatment under subheading 9817.95.05, HTSUSA.
HOLDING:
In accordance with GRI I, the bunny and lamb "Easter Plush Baskets" are classified in heading 6307, HTSUS, specifically, subheading 6307.90.9889, HTSUSA, which provides for "Other made up articles, including dress patterns: Other: Other: Other, Other: Other." The 2009 general, column one rate of duty is 7 percent ad valorem.
The bunny and lamb “Easter Plush Baskets” are eligible for duty-free treatment under subheading 9817.95.05, HTSUSA, which provides for “Utilitarian articles in the form of a three-dimensional representation of a symbol or motif clearly associated with a specific holiday in the United States.”
Duty rates are provided for convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on World Wide Web at http://www.usitc.gov/tata/hts/.
Sincerely,
Gail A. Hamill, Chief
Tariff Classification and Marking Branch