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HQ 951393


January 11, 1993

CLA-2 CO:R:C:F 951393 LPF

CATEGORY: CLASSIFICATION

TARIFF NO.: 9503.49.0020

Ms. Anne Di Stefano
Wonder Bar Products, Inc.
1624 Stillwell Avenue
Bronx, NY 10461

RE: Modification of NYRL 859325; Classification of snowman puppet; Heading 9503, HTSUSA, toy; Not 9505, festive article; HRL's 952520, 952249

Dear Ms. Di Stefano:

In New York Ruling Letter (NYRL) 859325, issued January 31, 1991, a Santa Claus and snowman puppet were classified in subheading 9505.10.50, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), as "Festive, carnival or other entertainment articles,...Articles for Christmas festivities and parts and accessories thereof: Other [than Christmas ornaments]: Other." We have reviewed that ruling and have found it to be partially in error. The Santa Claus puppet was properly classified. The correct classification of the snowman puppet follows.

FACTS:

The articles at issue, imported from China, are two textile puppets, one depicting Santa Claus and the other, a snowman. Each has a polyester, knit, napped fabric body with an oval shaped, see through, plastic insert over the stomach area, designed to display candy inserted in the torso of the puppets. The articles' heads, hands and feet are stuffed, and each puppet has a braided loop fastened in the seams adjacent to the ears. The openings in the seams at the shoulders and necks provide for puppet operation. The Santa Claus puppet which has a beard and moustache and wears an oversized, fur-lined coat with buckle, is identifiable as Santa upon importation.

ISSUE:

Whether the snowman figure is classifiable in heading 9503 as an other toy or rather in heading 9505 as a festive article.

LAW AND ANALYSIS:

The General Rules of Interpretation (GRI's) taken in their appropriate order provide a framework for classification of merchandise under the HTSUSA. Most imported 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. The Explanatory Notes (EN's) to the Harmonized Commodity Description and Coding System, which represent the official interpretation of the tariff at the international level, facilitate classification under the HTSUSA by offering guidance in understanding the scope of the headings and GRI's.

Heading 9505 provides for, inter alia, festive, carnival and other entertainment articles. The EN's to 9505 indicate 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....

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 article is not dispositive of its classification and, consequently, does not transform an item into a festive article.

When examining the snowman puppet, as a whole, it is evident that the article is not traditionally associated or used with the particular festival of Christmas. Generally, figurines, dolls and other articles, such as puppets, are not traditionally associated or used with the particular festival of Christmas; they are not ejusdem generis with those articles cited in the EN's to 9505, as exemplars of traditional, festive articles. Although our office has ruled that Santa Claus is a unique form that traditionally has been associated, particularly and exclusively, with Christmas, this is not the case with snowmen. Snowmen, although associated with the winter season, in general, are not particularly related to Christmas since they often appear in movies, cartoons, etc. of no significance to Christmas. See Headquarters Ruling Letters 952520, issued October 22, 1990, and 952249, issued October 30, 1992, classifying three dimensional forms of Santa Claus as festive articles, but classifying other articles not particularly associated with a festival as other than festive articles. The article must be classified elsewhere.

Heading 9503, HTSUSA, provides for, inter alia, other toys. The EN's to Chapter 95, HTSUSA, indicate that "this chapter covers toys of all kinds whether designed for the amusement of children or adults." It is Customs' position that the amusement requirement means that toys should be designed and used principally for amusement. See Additional U.S. Rule of Interpretation 1(a), HTSUSA. Customs defines principal use as that use which exceeds each other single use of the article. In this case, since the article will be principally used as a toy, it is classifiable in 9503. Because, from the information provided, it appears the puppet is not stuffed, it is classifiable in subheading 9503.49.0020.

HOLDING:

The snowman puppet is classifiable in subheading 9503.49.0020, HTSUSA, as "Other toys;...: Toys representing animals or non-human creatures (for example, robots and monsters) and parts and accessories thereof: Other, Toys not having a spring mechanism: Other." The general column one rate of duty is 6.8 percent ad valorem.

This notice should be considered a modification of NYRL 859325 pursuant to 19 CFR 177.9(d)(1). It is not to be applied retroactively to NYRL 859325 (19 CFR 177.9(d)(2)) and will not, therefore, affect past transactions for the importation of your merchandise under that ruling. However, for the purposes of future transactions in merchandise of this type, NYRL 859325 will not be valid precedent. We recognize that pending transactions may be adversely affected by this modification, in that current contracts for importations arriving at a port subsequent to this decision will be classified pursuant to it. If such a situation arises, you may notify this office and apply for relief from the binding effects of this decision as may be warranted by the circumstances.

Sincerely,

John Durant, Director
Commercial Rulings Division

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