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HQ 951394


December 2, 1992

CLA-2 CO:R:C:F 951394 LPF

CATEGORY: CLASSIFICATION

TARIFF NO.: 9505.10.50, 6913.10.50

Ms. Anna J. Hettinger
Attorney in Fact
Expeditors International of Washington, Inc. 5180-A Smith Road
Denver, CO 80216

RE: Modification of NYRL 860102; "Spirit Santa," "Tannenbaum Santa" and "Cornucopia Santa" porcelain figurines; Heading 9505, HTSUSA, Festive articles; Heading 6913, HTSUSA, Statuettes and other ornamental ceramic articles.

Dear Ms. Hettinger:

In New York Ruling Letter (NYRL) 860102, issued February 27, 1991, porcelain figurines, from Taiwan, 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 correct classification is as follows.

FACTS:

The articles at issue include "Spirit Santa" (Item #00151), "Tannenbaum Santa" (Item #00159) and "Cornucopia Santa" (Item #00143). The figurines are made from porcelain and are each 6 3/4 inches in height. The Spirit Santa wears a red robe and cap, has a beard and moustache and carries a sack stuffed with gifts. The Tannenbaum Santa wears a red robe, has a beard and moustache and carries a small fir tree in his hand and a sack filled with fruit and nuts on his back. The Cornucopia Santa wears a hooded blue cloak, has a beard and moustache and holds a horn of plenty and a garland of pine boughs.

ISSUE:

Whether the figurines are classifiable in heading 6913 as statuettes and other ornamental ceramic articles or in heading 9505 as festive articles.

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.

First, the figurines are made of non-durable material. Customs will consider articles, such as the Santa figurines, to be made of non-durable material since they are not designed for sustained wear and tear, nor are purchased because of their extreme worth or value (as would be the case with a decorative, yet costly, piece of art or crystal).

Next, the articles' primary function is decorative, as opposed to, utilitarian. It is apparent, the figurines serve no useful function besides their role as decoration.

Finally, when examining the Spirit Santa and Tannenbaum Santa figurines, as a whole, it is evident that the articles are traditionally associated or used with the particular festival of Christmas. This is not the case with the Cornucopia Santa.

Generally, figurines and dolls 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. However, Santa Claus is a unique form that traditionally has been associated, particularly and exclusively, with Christmas. Since the motif of an article is not dispositive of its classification, only three dimensional forms of Santa Claus, identifiable as such upon importation, are classifiable within 9505 as festive articles. See Headquarters Ruling Letter 088584, issued September 15, 1992, where decorative plates with flat renditions of a nativity scene and a holiday motif were classified as other than festive articles.

The fact that the Spirit Santa and Tannenbaum Santa figurines both have a beard and moustache, wear a cap and oversized robe (similar to a coat), and carry a sack of gifts, indicates that the articles are identifiable upon importation as Santa Claus. The Cornucopia Santa which does not possess most of these characteristics, is distinguishable only as an old man and is not identifiable upon importation as Santa Claus.

We also note that the articles are three dimensional, because they are not designed or effective primarily as a flat or surface composition, but rather are specifically designed to give an illusion of depth or varying distances. See Webster's Third New International Dictionary 2474 (1971). For these reasons, the Spirit Santa and Tannenbaum Santa figurines are classifiable, pursuant to GRI 1, in 9505 as festive articles.

The Santa figurines are classifiable within subheading 9505.10 which provides for articles for Christmas festivities. As for the proper classification of the Santa figurines at the eight digit subheading level, subheadings 9505.10.10, 9505.10.15 and 9505.10.25 cover Christmas ornaments of glass, wood and other, respectively. To qualify as a Christmas ornament, Customs looks to the following three criteria:

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 Santa figurines do not meet these criteria. Consequently, they are not classifiable as Christmas ornaments.

Subheading 9505.10.40, covers other Christmas articles of plastics, while subheading 9505.10.50, covers other Christmas articles made of other materials. As the Santa figurines are composed of porcelain, they are classifiable in subheading 9505.10.50.

Because the Cornucopia Santa is not classifiable in 9505 as a festive article, it must be classified elsewhere. Heading 6913 provides for statuettes and other ornamental ceramic articles. The EN's to 6913 indicate that the heading includes:

(A) Articles which have no utility value but are wholly ornamental, and articles whose only usefulness is to support or contain other decorative articles or to add to their decorative effect, e.g.:

(1) Statues, statuettes, busts, haut or bas reliefs, and other figures for interior or exterior decoration; ornaments (including those forming parts of clock sets) for mantelpieces, shelves, etc.,....

Since the porcelain figurine is decorative and ornamental, it is classifiable in heading 6913. Assuming it is not produced by professional sculptors nor directly produced from molds made from original models produced by professional sculptors, the applicable subheading is 6913.10.5000.

HOLDING:

The Spirit Santa and Tannenbaum Santa figurines remain classifiable in subheading 9505.10.5000, HTSUSA, as "Festive, carnival or other entertainment articles,...Articles for Christmas festivities and parts and accessories thereof: Other [than Christmas ornaments]: Other." The general column one rate of duty is 5.8 percent ad valorem.

The Cornucopia Santa is classifiable in subheading 6913.10.5000, HTSUSA, as "Statuettes and other ornamental ceramic articles: Of porcelain or china: Other: Other." The general column one rate of duty is 9 percent ad valorem.

This notice should be considered a modification of NYRL 860102 pursuant to 19 CFR 177.9(d)(1). It is not to be applied retroactively to NYRL 860102 (19 CFR 177.9(d)(2)) and will not, therefore, affect past transactions for the importation of your client's merchandise under that ruling. However, for the purposes of future transactions in merchandise of this type, NYRL 860102 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, your client may, at its discretion, 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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