HQ 084564: Decision on Application for Further Review of Protest No. 28096-001831; Classification of picnic baskets made of unspun fibrous vegetable materials with accompanying dinnerware

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 084564

                         August 29, 1990

CLA-2 CO:R:C:G 084564  WAW

CATEGORY:  Classification

TARIFF NO.:  706.21, 706.29, 772.06, 772.15

District Director of Customs
U.S. Customs Service
555 Battery Street
San Francisco, CA 94126

RE:  Decision on Application for Further Review of Protest
     No. 28096-001831; Classification of picnic baskets
     made of unspun fibrous vegetable materials with
     accompanying dinnerware

Dear Sir:

     This is a decision on an application for further review of a
protest timely filed November 4, 1986, against your decision in
the classification of two rattan picnic baskets and one fern
basket which consist of unspun fibrous vegetable materials and
their accompanying dinnerware under the Tariff Schedules of the
United States Annotated (TSUSA). The following is a list of the
four entries which are the subject of this protest:

     Entry               Entered             Liquidated
     86-2741730          4/2/86              9/12/86
     86-2742535          4/24/86             9/12/86
     86-2741028          2/27/86             8/29/86
     86-2741727          3/27/86             8/29/86

all of which covered shipments of picnic baskets with
accompanying dinnerware.  Our decision follows.

FACTS:

     The merchandise at issue in this case consists of three
types of baskets.  The first article is described as a white
rattan basket, style number W857-433, which includes four
plastic glasses, four plastic plates, and a set of stainless
steel forks, spoons and knives for four persons.  The second
article is described as a rattan basket, style number W857-284,
which includes four mugs and a set of plastic forks, spoons and
knives for four persons.  The third article is described as a
fern basket with a tray, style number KP1-672-B, which includes
four mugs, one cutting board, and a set of plastic forks, spoons
and knives for four persons.  The three sample articles are
manufactured in Hong Kong.

     At the time of entry of the goods, your office classified
the two rattan baskets with the accompanying dinnerware as
entireties under item 706.2100, TSUSA, which provides for luggage
and handbags, whether or not fitted with bottle, dining,
drinking, manicure, sewing, traveling, or similar sets; and flat
goods: Of unspun fibrous vegetable materials: Of rattan or of
palm leaf: Other, dutiable at a rate of 18.9 percent ad valorem.
Customs classified the fern basket with accompanying dinnerware
also as an entirety under item 706.2915, TSUSA, which provides
for luggage and handbags, whether or not fitted with bottle,
dining, drinking, manicure, sewing, traveling, or similar sets;
and flat goods: Of unspun fibrous vegetable materials: Other:
Other, dutiable at a rate of 5.7 percent ad valorem.

     The protestant, however, maintains that the baskets with
their accompanying dinnerware do not constitute an entirety for
tariff purposes and should be separately classified.  He
believes that the sample rattan baskets are more properly
classified under the provision for baskets and bags, of unspun
fibrous vegetable materials, whether lined or not lined: Of
rattan or of palm leaf, under item 222.42, TSUSA, and dutiable at
a rate of 11.9 percent ad valorem.  Similarly, the protestant
believes that the sample fern basket is properly classified under
the provision for baskets and bags, of unspun fibrous vegetable
materials, whether lined or not lined: Other, under item 222.44,
TSUSA, dutiable at a rate of 4.5 percent ad valorem.

ISSUE:

     Whether the rattan and fern baskets with their accompanying
dinnerware are classified as an "entirety" under the provision
for luggage, whether or not fitted with bottle, dining, drinking,
manicure, sewing, traveling, or similar sets under item 706.21 or
706.29, TSUSA, respectively or whether the articles should be
separately classified.

LAW AND ANALYSIS:

     In general, an article will be regarded as an entirety under
the TSUSA when the components, upon being joined, form a new
article which has a character or use different from that of any
of the parts, or when one of the components or elements is
predominant, the other parts being merely incidental to the
predominant part. See E.M. Stevens Corp. v. United States, 49
Cust. Ct. 203 (1962).  Conversely, where the article imported is
a unit, but the components retain their individual identities and
are not subordinated to the identity of the combination, duty
will be imposed on the individual entities of the combination as
though they had been imported separately.  Donalds Ltd., Inc. v.
United States, 32 Cust. Ct. 310 (1954).

     In tariff classification matters, the statutory language
itself may in some instances indicate that the imported
merchandise is to be classified as an entirety.  An example of
such language is the term "fitted with" as it is found in the
TSUSA provision which provides for luggage, whether or not fitted
with bottle, dining, or similar sets.  As this term has been
interpreted by the Customs Court, it refers to something that is
shaped to conform to the lines of something else or is something
that is added or adapted to a named item.  Thus, in the instant
case, the question centers on the determination of whether the
dinnerware is "fitted with" the basket or whether it merely
accompanies the basket.

     In Headquarters Ruling Letter (HRL) 079028, dated April 28,
1987, Customs held that a vinyl party bag with a textile coil
zipper closure encircling the bag and accompanying plastic
plates, glasses, forks, knives and spoons in shrink wrapped
plastics should be classified separately.  In this case, Customs
stated that the plastic utensils and party bag shipped together
and intended to be used together did not constitute an entirety
for tariff purposes because the components of the set retain
their individual identities and are not subordinate to the
identity of the combination.

     It is your position that the baskets with accompanying
plastic dinnerware in the instant case should be classified as an
entirety based on Headquarters Ruling Letter (HRL) 074374, dated
November 26, 1984.  In that ruling, Customs held that an
insulated lunch bag and accompanying thermos constituted an
entirety for tariff purposes and should be classified in item
706.62, TSUSA, as a drinking set.  Customs stated that the lunch
bag and thermos, in that case, were color coordinated and
designed to be used in conjunction with each other as a merged
unit, despite the fact that they could be sold separately or as a
set.  Moreover, in this case it was evident that the lunch bag
and thermos unit were specially adapted and fitted to each other
to indicate use together as an entirety.

     Customs has previously held that picnic bags which are used
to carry food and beverages while traveling are ejusdem generis
with the exemplars set forth in headnote 2(a) of schedule 7,
subpart D, which defines luggage.  In Prepac, Inc. v. United
States, 78 Cust. Ct. 108, C.D. 4694 (1977), the Customs Court
held that plastic picnic bags having handles and zipper closures
were properly classified under item 706.60, TSUSA, as luggage.
The Court stated that the utilization of the language in the
luggage provision, to include bags which are primarily fitted for
dining and drinking is indicative of the intent of Congress to
include within this subpart luggage or travel goods used for
those purposes.  Accordingly, the Court held that picnic bags
which are designed primarily to carry food and beverages on a
trip are encompassed within the luggage provision in item
706.60, TSUSA.

     It is the determination of this office that the baskets with
their accompanying dinnerware more closely resemble the party bag
and plastic utensils which were the subject of HRL 079028, rather
than the plastic lunch box and thermos which were the subject of
HRL 074374.  In the instant case, based on the limited
information that has been provided to this office, it is our
understanding that the utensils are not "fitted with" dining,
drinking or similar sets as that term has been interpreted to
mean in the tariff, since the utensils merely accompany the
basket.  All of the individual components may be used separately
and retain their own commercial value apart from the entire unit.

     Furthermore, the plastic utensils and plates are most likely
shrink-packed separately from the basket and are merely
presented together in the same retail carton and sold as a
"set."  Customs has previously determined, however, that articles
bought and sold in sets are not necessarily entireties for tariff
purposes, where the statute does not provide for sets, and each
piece is an independent article of commerce and retains its own
individual identity, name and character.  There is no indication
that the plastic utensils and plates are color coordinated with
the baskets or designed to be used in conjuction with each other.
Accordingly, in the instant case, the baskets and dinnerware
units may be actually and commercially considered to constitute
two or more individual entities, which even though imported
joined or assembled together, nevertheless, retain their separate
identities and are not subordinated to the identity of the
combination.  Thus, it is our position that the merchandise must
be separately classified.

HOLDING:

     Based on the foregoing analysis, it is our determination
that the sample rattan and fern baskets with accompanying
dinnerware do not constitute an entirety for tariff purposes and
the articles should be separately classified.  The rattan basket
should be classified under item 706.2100, TSUSA, which provides
for luggage and handbags, whether or not fitted with bottle,
dining, drinking, manicure, sewing, traveling, or similar sets;
and flat goods: Of unspun fibrous vegetable materials: Of rattan
or of palm leaf: Other, dutiable at a rate of 18.9 percent ad
valorem.  The fern basket should be classified under item
706.2915, TSUSA, which provides for luggage and handbags, whether
or not fitted with bottle, dining, drinking, manicure, sewing,
traveling, or similar sets; and flat goods: Of unspun fibrous
vegetable materials: Other: Other, dutiable at a rate of 5.7
percent ad valorem.  The plastic plates should be separately
classified under the provision for plates in item 772.06, TSUSA,
dutiable at a rate of 7 percent ad valorem.  The plastic glasses,
knives, forks and spoons are classified as articles chiefly used
for preparing serving, or storing food or beverages in item
772.15, TSUSA, dutiable at a rate of 3.4 percent ad valorem.

     The protest should be denied except to the extent that the
classification of the plastic plates under item 772.06, TSUSA and
the classification of the plastic glasses, knives, forks, and
spoons under item 772.15, TSUSA, results in a partial allowance.
A copy of this decision should be attached to the Form 19 Notice
of Action to be sent to the protestant.

                                   Sincerely,




                                   John Durant, Director
                                   Commercial Rulings Division