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HQ 086772

August 8, 1990

CLA-2 CO:R:G 086772 STB

CATEGORY: CLASSIFICATION

TARIFF NO.: 9505.10.40, 3926.40.00

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

RE: Christmas Little Bitty Bits

Dear Mr. Simon:

Your letter of March 15, 1990 concerns the tariff classification of six small plastic figures manufactured in China. Samples were submitted with your request.

FACTS:

The six samples, known as style number 1078, measure approximately 1-1/2 to 1-3/4 inches in height. They represent various items/beings that are described as follows: 1. a figure of Santa Claus wearing traditional Christmas colors; 2. a Christmas tree that is green in color with human features, including arms and legs. The legs are colored red and a yellow star is located at the top of the tree. The body of the tree is adorned with yellow colored stars and red and yellow decorations that are round in shape as if to simulate Christmas tree ornaments on the tree. Human features representing eyes, a nose and a mouth are also present.; 3. a toy soldier wearing a red jacket with green pants. He is holding a red and white striped candy cane in his hands. His black hat is decorated with berries and holly in front.; 4. a comical representation of a reindeer with a red, green and white striped scarf, a red nose and black sunglasses; The words "Have a Cool Yule" appear on the base of this figure.; 5. a panda bear on red skis with the words "Merry Kissmas" located on the bottom of the skis, and 6. a puppy sitting on a red sleigh, wearing a green and white striped scarf. These items are marketed under the name "Christmas Little Bitty Bits."

ISSUE:

What is the proper classification of the six samples submitted which are marketed as "Christmas Little Bitty Bits?"

LAW AND ANALYSIS:

The General Rules of Interpretation (GRI's) set forth the legal framework in which merchandise is to be classified under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). GRI 1 requires that classification be determined first according to the terms of the headings of the tariff and any relevant section or chapter notes and, unless otherwise required, according to the remaining GRI's taken in order.

The subheadings at issue in this case are:

(a) 9505.10, HTSUSA, 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:...

(b) 3926.40, HTSUSA, Other articles of plastics and articles of other materials of headings 3901 to 3914: Statuettes and other ornamental articles;...

It appears from the above language that at least five of six of the subject figures could possibly be classified in both subheadings. Additionally, there is no language in either the notes or Explanatory Notes to chapters 95 and 39 that would exclude these figures from either chapter or these particular subheadings.

It is our determination that five of these figures are properly classifiable in Heading 9505, HTSUSA. The figure representing a puppy on a sleigh, however, is properly classifiable in Heading 3926, HTSUSA. This determination is based on the nature of the articles themselves and the application of GRI 3(a).

The Explanatory Notes, which constitute the official interpretation of the tariff at the international level, provide guidance as to what types of items are to be classified in Heading 9505, HTSUSA. 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 Heading 9505, HTSUSA, generally covers articles which by their shape, design, and ornamental characteristics fall into that class of goods which are appropriately used in connection with a recognized festive holiday. The Christmas theme is readily apparent in five of the six figures. The Santa Claus figure and the Christmas Tree figure are self explanatory. If there were any doubt about the reindeer figure, this is assuaged by the words "Have a Cool Yule" which appear on the figure. Although a Panda bear is not necessarily a Christmas character, the words "Merry Kissmas" on the bottom of the snow skis, together with the extensive use of traditional Christmas colors, clearly indicates that this item is intended for use during the Christmas period. The extensive use of Christmas colors on the toy soldier, together with the large candy cane he is holding and the holly decoration on the hat are indicators that this item is intended to be associated with Christmas.

The only figure for which the Christmas connection is not clear is that figure which represents a puppy sitting on a sleigh. The figure definitely represents a winter theme, but not necessarily a Christmas theme. Although Christmas colors are used-- the sleigh is bright red and the scarf is green--these colors are not as obvious as they are on the other figures. No words appear on this figure to connect it with the Christmas season.

All of these items are marketed, sold and most likely used as Christmas display figures. They have no extremities or parts which can be manipulated; they are not intended to be manipulated or played with. There is no intention that they be used on a year round basis and, with the exception of the puppy/sleigh figure, they have little actual use or value except to decorate the home during the Christmas season; this is the
intended use.

When goods are prima facie classifiable under two or more headings, as is the case with five of these figures (the puppy/sleigh figure is only classifiable in Heading 3926), we must refer to GRI 3. GRI 3 (a) states, in pertinent part:

3. When by application of rule 2 (b) or for any other reason, goods are, prima facie, classifiable under two or more headings, classification shall be effected as follows:

(a) The heading which provides the most specific description shall be preferred to headings providing a more general description.

In this case, it is clear that Heading 9505, which covers "[f]estive, carnival or other entertainment articles..." provides a much more accurate and specific description of these five items than does the basket provision of Heading 3926, HTSUSA, which covers "Other articles of plastics...."

The final issue requiring resolution is the question of which eight digit category the five 9505 figures should properly fall under. Subheading 9505.10 provides for articles for Christmas festivities. Those articles are further subdivided at the eight digit level into Christmas ornaments, nativity scenes and other. These items are not properly classified under nativity scenes because the figures do not represent the characters of such a scene. These figures are also not properly classifiable as Christmas ornaments because Customs has determined that, for tariff purposes, to qualify as a Christmas ornament the item must be marketed and sold as a Christmas tree ornament, that there must be some method, generally a loop attached to the top to secure or hang the item on a tree, and that the item not be too big or too heavy to be hung or attached to a tree. Accordingly, the five subject Christmas Little Bitty Bits figures fall into the "Other" provision.

In your request, you contend that an item need not be a Christmas "tree" ornament in order to be classifiable as a Christmas ornament. In support of this argument you refer to Artiflor Mfg. Co. v. United States, 66 Cust. Ct. 82, C.D. 4171 (1971) in which the court ruled that it was the intent of Congress not to limit the term "Christmas ornaments of glass" in the Tariff Schedules of the United States (TSUS) only to Christmas tree ornaments. This argument is not accepted because
cases interpreting the language of the TSUS do not necessarily have precedent value when discussing the HTSUSA. Under the HTSUSA. the rationale for limiting the Christmas ornament subheading to items which are hung or affixed to Christmas trees is found in the commercial reality of the Christmas ornament market, and the Explanatory Notes which generally distinguish between tree decorations and other decorations traditionally associated with Christmas.

HOLDING:

Five of the six samples submitted, marketed as "Christmas Little Bitty Bits", are properly classifiable under subheading 9505.10.40, HTSUSA, as 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: Other: of plastics. The applicable duty rate is 8.4% ad valorem. The five samples that fall under this heading are the Santa figure, the Christmas tree figure, the toy soldier, the reindeer and the panda bear figure.

The puppy/sleigh figure is properly classifiable in subheading 3926.40, HTSUSA, the provision for other articles of plastics and articles of other materials of headings 3901 to 3914: Statuettes and other ornamental articles. The applicable duty rate for this figure is 5.3% ad valorem.

Sincerely,

John Durant, Director

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