CLA-2 RR:TC:TE 958553 GGD
Mr. Bernard D. Liberati
Morris Friedman & Co.
320 Walnut Street
Philadelphia, Pennsylvania 19106-3883
RE: Modification of Laredo District (now Port) Ruling Letter
(DD) 804366; "Abaca Halloween Basket with Handle;" Articles
Made Directly to Shape from Plaiting Materials; Not Knotted
Netting of Twine, Cordage or Rope; Not Festive Article
Dear Mr. Liberati:
This letter is in response to your request dated May 8, 1995, on behalf of your client, Don Wasserman, International, for reconsideration of DD 804366, issued December 14, 1994, concerning the classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) of a round decorative basket with a handle, imported from the Philippines. A sample was submitted with the request. In DD 804366, Customs classified the merchandise in subheading 5608.90.3000, HTSUSA, the provision for "Knotted netting of twine, cordage or rope; made up fishing nets and other made up nets, of textile materials: Other: Other: Other." We have reviewed that ruling and have found it to be partially in error. The correct classification is as follows.
Pursuant to section 625, Tariff Act of 1930 (19 U.S.C. 1625), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act, Pub. L. 103-182, 107 Stat. 2057, 2186 (1993) -2-
(hereinafter section 625), notice of the proposed modification of DD 804366 was published on November 22, 1995, in the Customs Bulletin, Volume 29, Number 47.
FACTS:
The sample article, identified as a "Halloween Basket" and further identified by item no. DS-036, is a round basket with a handle and an attached ghost figure holding a tiny pumpkin. The basket measures approximately 6 inches in diameter, and 8 inches from the basket's bottom to the top of the handle. The ghost figure measures approximately 6 inches in length by 3-1/2 inches
in width and is composed of unspun, untwisted fibers, which are bundled to form the head. The basket's frame and handle are composed of unspun abaca fibers wrapped around wire. Within the frame is a net-like, openwork mesh, formed by unspun, untwisted abaca fibers.
ISSUES:
1) Whether the item is classified in heading 9505, HTSUS, as a festive article.
2) If not classifiable as a festive article, whether the item is classifiable heading 5608, HTSUS, as knotted netting of twine, cordage or rope...other made up nets, of textile materials; or in heading 4602, HTSUS, as articles made from plaiting materials.
LAW AND ANALYSIS:
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRI). The systematic detail of the harmonized system is such that virtually all goods
are classified by application of GRI 1, that is, 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 GRIs may then be applied. The Explanatory Notes (EN) to the Harmonized Commodity Description and Coding System, which represent the official interpretation of the tariff at the international level, facilitate classification under the HTSUS by offering guidance in understanding the scope of the headings and GRI.
Heading 9505, HTSUSA, provides for, among other items, festive, carnival or other entertainment articles. The EN to heading 9505 states, in part, that the heading covers: -3-
(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.
In general, merchandise is classifiable in heading 9505, HTSUSA, as a festive article when the article, as a whole:
1. is of non-durable material or, generally, is not purchased because of its extreme worth, or intrinsic value (e.g., paper, cardboard, metal foil, glass fiber, plastic, wood);
2. functions primarily as a decoration (e.g., its primary function is not utilitarian); and
3. is traditionally associated or used with a particular festival (e.g., stockings and tree ornaments for Christmas, decorative eggs for Easter).
An article's satisfaction of these three criteria is indicative of classification as a festive article. The motif of an item is not dispositive of its classification and, consequently, does not transform an item into a festive article.
We consider the "Halloween Basket" to be made of non-durable material (since it is not designed for sustained wear and tear, nor is it purchased because of its extreme worth or value). The item fails, however, to satisfy the second and third criteria. Although this article has a decorative aspect, baskets, by their very nature, are primarily functional. We also find that ghosts, even those holding pumpkins, are not traditionally associated with a particular festival. Ghosts are often the subject of mythology, plays, movies, comic books, and cartoons bearing no significance to a festival or holiday. With regard to pumpkins, Customs classifies jack-o'-lanterns which are 1) of a pumpkin shape or form, and 2) capable of illumination as traditional -4-
Halloween articles. Although a ghost and a pumpkin may suggest a festive motif, the motif does not transform the classification of an item, particularly one that is functional, into a festive article. In light of the above, the basket is not classified in heading 9505.
Heading 5608, HTSUS, essentially covers knotted netting composed of materials that have been twisted, spun, braided, or otherwise woven together. As noted in the FACTS section, the basket is essentially composed of wire and unspun, untwisted fibers. As such, the baskets are not classifiable as textile products of heading 5608.
Heading 4602, HTSUS, 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." In pertinent part, note 1 to chapter 46, HTSUS, states that:
"[i]n this chapter the expression "plaiting materials" means materials in a state or form suitable for plaiting, interlacing or similar processes; it includes straw...strips of wood, strips of other vegetable material (for example, raffia, narrow leaves or strips cut from broad leaves) or bark, unspun [emphasis added] natural textile fibers....
Although the basket is constructed from both wire and abaca, the essential character of the whole is clearly imparted by the unspun, untwisted, natural textile fibers, and not by the wire. The item is thus classified in heading 4602, HTSUS. The proper subheading is 4602.10.1800, HTSUSA.
HOLDING:
The article identified as a "Halloween Basket," and further identified by item no. DS-036, is properly classified in subheading 4602.10.1800, HTSUSA, the provision for "Basketwork, wickerwork and other articles, made directly to shape from plaiting materials or made up from articles of heading 4601; articles of loofah: Of vegetable materials: Other baskets and bags, whether or not lined: Other: Other." The applicable rate of duty is 4.5 percent ad valorem.
DD 804366, issued December 14, 1994, is hereby modified.
In accordance with section 625, this ruling will become effective 60 days from its publication in the Customs Bulletin. Publication of rulings or decisions pursuant to section 625 does -5-
not constitute a change of practice or position in accordance with section 177.10(c)(1), Customs Regulations (19 CFR 177.10(c)(1)).
Sincerely,
John Durant, Director
Tariff Classification
Appeals Division