HQ 957995: Reconsideration of NYRL 866788; classification of a picnic basketmade of plaiting materials; other baskets; luggage

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                            HQ 957995

                          August 7, 1995

CLA-2 R:C:T 957995 BC

CATEGORY: Classification

TARIFF NO.: 4602.10.1200

Julia E. Hartenfels
William B. Skinner, Inc.
Hemisphere Center
Route 1 and 9 South
Newark, NJ 07114

RE:  Reconsideration of NYRL 866788; classification of a picnic basket
made of plaiting materials; other baskets; luggage

Dear Ms. Hartenfels:

     Recently, Customs has had occasion to review the matter of
classification of picnic baskets and cases made of plaiting materials.
We have determined that baskets and cases of the class or kind
principally used as picnic baskets are classifiable as "other
baskets," rather than as "luggage," under subheading 4602.10, HTSUSA.
Consequently, we hereinbelow modify New York Ruling Letter (NYRL)
866788, issued to you on September 24, 1991.

FACTS:

     On September 24, 1991, Customs issued NYRL 866788, classifying a
picnic basket in subheading 4602.10.2200, Harmonized Tariff Schedule
of the United States Annotated (HTSUSA), which provides for luggage of
vegetable plaiting materials, of willow.  The ruling described the
basket as follows: "The submitted sample, item #W098, is a picnic
basket constructed of 100% willow with a removable textile man-made
lining for easy cleaning." The basket was oval in shape, had a handle
that extended over the top center of the basket, and had lift-up flaps
on either side.

ISSUE:

     Whether the picnic basket at issue is classifiable as "other
baskets" or as "luggage" under subheading 4602.10, HTSUSA?

LAW AND ANALYSIS:

     For purposes of this discussion, we note that heading 4602, which
provides for basketwork, wickerwork, and other articles made directly
to shape from plaiting materials, is divided into two major parts: (I)
of vegetable materials (4602.10) and (II,) other (4602.90). The
relevant first part (4602.10) is divided into four subparts: (1)
fishing baskets and creels (4602.10.05); (2) other baskets and bags,
whether or not lined (4602.10.07 - 4602.10.18); (3) luggage, handbags
and flatgoods (4602.10.21 - 4602.10.29); and (4) other (4602.10.35 -
4602.10.80).

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    The rationale for classifying picnic baskets as luggage under
subheading 4602.10, HTSUSA, was explained in Headquarters Ruling
Letter (HRL) 954702, issued on August 16, 1994. That ruling correctly
pointed out that the structure of heading 4602, HTSUSA, requires that
baskets be classified separately from luggage, handbags, and
flatgoods. However, in concluding that the picnic case there at issue
was correctly classified as luggage (of plaiting materials), the
following was stated: "By specifically listing luggage, handbags and
the like'separately from baskets, Congress demonstrated its intent to
have articles used for the conveyance of items (which the picnic
'basket' clearly is) classified apart from mere household containers
constructed of plaiting materials." This statement implies that, for
purposes of classification in heading 4602, HTSUSA, luggage is defined
as articles used for the conveyance of items, and baskets are defined
as household containers constructed of plaiting materials. We now
believe that this definition of "luggage" is too broad, encompassing
many articles that are not luggage, and this definition of "baskets"
is too narrow, appearing to limit baskets to household containers that
do not convey items. The result is a blurring of the heading's
structural separation of baskets from luggage.

     The definitions put forward in HRL 954702 permitted
classification of the picnic basket/case as luggage: A picnic basket
or case, being used outside the home, is not a household article, so
it could not be classified as a basket; also, since a picnic
basket/case is an article that conveys items, it fit the broad
definition of luggage. Yet, a close examination of the basket/case
there at issue (as well as the picnic basket at issue in NYRL 866788
and picnic baskets/cases generally) reveals that its nature and
character are more like those of baskets than of luggage. It is
designed and used for carrying food, beverages, and utensils to
picnics and picnic-like events (such as a day at the beach or outdoor
concert). It is called a picnic basket. It is marketed as a picnic
basket. In short, everything about this picnic basket/case, as well 
as picnic baskets generally, including the basket at issue in NYRL
866788, suggests "basket."

     In Royal Cathay Trading Co. V. United States, 45 Cust. Ct. 99,
C.D. 2206 (1960), a case where the United States Customs Court
rejected Customs classification of suitcases and valises made of
plaiting materials as baskets under the Tariff Schedules of the United
States (TSUS), the court based its decision on the character of the
articles there at issue. The court reasoned that while the suitcases
and valises fit the broad definition of "baskets" put forward in
United States v. Byrnes & Co., 11 Ct. Cust. Appls. 68, T.D. 38728, the
obvious character of these articles precluded their classification as
such. The court looked to the nature and use of the articles to
determine their character, and concluded that their character was not
that of baskets, but was instead that of suitcases and valises.

     Applying the rationale of the Royal Cathay opinion to the instant
case, and to the matter of picnic baskets and cases generally, we
believe that the character of these articles is more like that of
baskets and less like that of luggage. Their nature and use establish
their character as picnic baskets, rather than as luggage.
(See H.J. Stotter, Inc. v. United States, Court No. 92-03-00142, Slip

                               3
                                
op. 94-121, July 27, 1994 (CIT), 28 Cust. Bull., No. 33, p. 48, 52,
quoting from United States v. Quon Quon Co., 46 CCPA 70, 73, C.A.D.
699 (1959), for the proposition that evidence of use is often highly
probative of an article's identity for tariff purposes.)

    It is necessary then to set forth an interpretation of heading
4602, HTSUSA, that better distinguishes between baskets and luggage.
Thus, we conclude that the "other baskets" subheadings under
subheading 4602.10, HTSUSA, provide for all baskets, other than
fishing baskets and creels, whether or not they are household articles
and whether or not they are used to carry other articles. The
"luggage, handbags, and flatgoods" subheadings under subheading
4602.10, HTSUSA, are limited to coverage of the named articles
(subject to the ejusdem generis rule of statutory construction).  We
decline to broadly define luggage for purposes of heading 4602,
HTSUSA, as containers used to carry other articles from place to
place.  To do so is to improperly encompass a wide variety of
containers that do not resemble luggage.

    Based on the foregoing, we conclude that the picnic basket at
issue in NYRL 866788 is classifiable as an other basket of vegetable
plaiting materials, rather than as luggage. The precise subheading
applicable to the basket depends on its material composition. As
stated in the "FACTS" section, the picnic basket here is made of 100%
willow.

HOLDING:

    The picnic basket at issue, classified in NYRL 866788 as luggage
of vegetable plaiting materials, is instead classifiable in subheading
4602.10.1200, HTSUSA, as an other basket of vegetable plaiting
materials, of willow. The applicable duty rate is 5.8% ad valorem.

     Accordingly, NYRL 866788 is hereby modified.

                              Sincerely,


                              John Durant, Director
                              Commercial Rulings Division