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HQ 085189


November 9, 1989

CLA-2 CO:R:C:G: 085189 DPS

CATEGORY: CLASSIFICATION

TARIFF NO.: 9505.10.2500

Joel K. Simon, Esquire
Serko & Simon
One World Trade Center
Suite 3371
New York, N.Y. 10048

RE: Bavarian Christmas Ornaments

Dear Mr. Simon:

Your letter of July 7, 1989, on behalf of Russ Berrie & Company, Inc., to our New York office has been referred to this office for reply concerning the tariff classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA), of item 3431, Bavarian Christmas Ornaments. This item is comprised of three Christmas ornaments which depict a soldier, a fairy and a Santa Claus. Samples of each ornament were submitted with your ruling request. Their country of origin was not specified.

FACTS:

The subject merchandise consists of three stuffed figures described as Bavarian Christmas ornaments. The figure depicting a soldier measures approximately six inches in height, is dressed in ceremonial soldier costume and holds a miniature textile Christmas tree in his right hand. The figure is lightweight and has a gold loop attached to the top of its hat which enables it to be hung from a tree.

The figure depicting a fairy measures approximately five inches in height, is dressed in white tights with a net overlay skirt and there is a gold circular band on her head depicting a halo and a star in her hand depicting a wand. The figure is lightweight and has a gold loop attached to its head which enables it to be hung from a tree.

The third figure represents Santa Claus. He measures approximately seven inches in height and is clad in traditional Santa garb. Like the others, this figure is lightweight and has a gold loop attached to the top of its hat enabling it to be hung from a tree.

You suggest that the subject items should be classified as follows: that the Santa Claus and soldier are classifiable in subheading 9502.10.2000, HTSUSA, which provides for stuffed dolls representing only human beings; and that the fairy is classifiable in subheading 9503.41.1000, HTSUSA, which provides for stuffed toys representing animals or non-human creatures.

ISSUE:

Whether the subject articles, described as Bavarian Christmas Ornaments, are considered Christmas ornaments, classifiable under subheading 9505.10.2500, HTSUSA, the provision covering Christmas ornaments, not of wood or glass; or whether the subject figures are classifiable as stuffed dolls, in subheadings 9502.10.2000, HTSUSA, and/or 9503.41.1000, HTSUSA.

LAW & ANALYSIS:

The General Rules for the Interpretation of the Harmonized System (GRI's) govern classification under the Harmonized Tariff Schedule. According to GRI 1, the primary consideration in determining whether merchandise should be classified in a heading should be given to the language of the heading and any relevant chapter or section notes, and, provided such headings or notes do not otherwise require, according to the remaining GRI's, taken in order. The subheadings at issue in this case are:

(a) 9502.10.2000, HTSUSA, Dolls representing only human beings and parts and accessories thereof: Dolls, whether or not dressed: Stuffed;

(b) 9503.41.1000, HTSUSA, Toys representing animals or non-human creatures (for example, robots and monsters) and parts and accessories thereof: Stuffed toys and parts and accessories thereof: Stuffed toys; and

(c) 9505.10.2500, Festive, carnival or other entertainment articles, including magic tricks and practical joke articles; parts and accessories thereof: Articles for Christmas festivities and parts and accessories thereof: Christmas ornaments: Other: Other.

The Explanatory Notes to the HTSUSA, which constitute the official interpretation of the tariff at the international level, provide further guidance in determining the scope of each provision. With regard to Heading 9505, HTSUSA, the provision for festive articles, Explanatory Note 95.05, at p. 1590, states 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.

(2) Articles traditionally used at Christmas festivities, e.g., artificial Christmas trees (these are sometimes of the folding type), nativity scenes, Christmas crackers, Christmas stockings, imitation yule logs.

...

For the most part, the items described above which fall under Heading 9505, HTSUSA, tend to have no function other than decoration.

It is Customs' position that an article by its shape, design, ornamentation and appropriate use in connection with a recognized festive holiday, is an article that falls under Heading 9505, HTSUSA. Here, the subject stuffed figures are Christmas ornaments per se. To qualify as a Christmas ornament, Customs requires that the following three criteria be met: (1) that the item is advertised and sold as a Christmas tree ornament; (2) that there is some method, generally a loop attached to the top, to hang the item on a tree; and (3) that the item is not too big or too heavy to be hung or attached to a tree. The submitted samples clearly meet the above criteria. They are designed, sold, and used as tree ornaments. Therefore, pursuant to GRI 1, the three articles described as Bavarian Christmas ornaments are classifiable under subheading 9505.10.2500, the provision for Christmas ornaments, made of material other than glass or wood. Christmas ornaments consisting of human figures are a class of merchandise separate and distinct from dolls.

No information was provided as to whether the subject ornaments are imported together as a set, or separately. However, such information does not affect their classification, as they are all considered Christmas ornaments, classifiable under the provision for Christmas ornaments, subheading 9505.10.2500, HTSUSA.

HOLDING:

Pursuant to GRI 1, the subject Bavarian Christmas ornaments are properly classifiable under subheading 9505.10.2500, HTSUSA, the provision for Christmas ornaments made of material other than glass or wood.

Sincerely,

John Durant, Director
Commercial Rulings Division

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