HQ 087147

February 28, 1991

CLA-2 CO:R:C:G 087147 SLR

CATEGORY: Classification

TARIFF NO.: 4602.90.0000

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