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HQ 951459


March 17, 1993

CLA-2 CO:R:C:F 951459 LPF

CATEGORY: CLASSIFICATION

TARIFF NO.: 9505.10.40; 3926.40.00

Mr. Joe Schmid
J.S. International
110 West Ocean Blvd., Suite 307
Long Beach, CA 90802

RE: Modification of NYRL 857808; "Dedt Moroz," "Kris Kringle," and "Soda Pop" poly-resin figurines; Heading 9505, HTSUSA, Festive articles; Heading 3926, HTSUSA, Other articles of plastics; HRL 951422, 952520

Dear Mr. Schmid:

In New York Ruling Letter (NYRL) 857808, issued December 4, 1990, poly-resin figurines, from Taiwan, were classified in subheading 9505.10.40, 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]: Of plastics." 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 "Dedt Moroz" (Item # 1651), "Kris Kringle" (Item # 1657), and "Soda Pop" (Item # 1658). The figurines are made from unsaturated poly-resin and calcium carbonate. "Dedt Moroz" is described as Russia's "Grandfather Frost" who rewarded good behavior by bestowing diamonds and froze those who angered him. The figurine, appearing to be blown back from the wind, is wearing a wind-blown, faded cloak, cap, and ice boots, has a beige moustache and beard, and is holding a walking stick. "Kris Kringle" is described as the derivative of Christ kindli, German for Christchild. The thin figurine has a beard and moustache, is wearing a long, flowing cloak and hood, and is holding a pine tree. "Soda Pop" has a beard, moustache and fat belly, is wearing an oversized, fur-lined coat with buckle, a cap, and boots, and is holding a bottle of soda pop.

ISSUE:

Whether the figurines are classifiable in heading 3926 as other articles of plastics or rather 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 Soda Pop figurine, as a whole, it is evident that the article is traditionally associated or used with the particular festival of Christmas. This is not the case with the Kris Kringle or Dedt Moroz figurines.

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.

In regard to festive articles, we note that, in part, the applicable standard is "traditionally associated or used with a particular festival." It is our understanding that "traditional use," as referred to in the EN's to 9505, means traditional use in the United States at the time of importation. Similarly, in the cases of Sanji Kobata et al. v. United States, 66 Cust. Ct. 341, C.D. 4213 (1971), W & J Sloane, Inc. v. United States, 76 Cust. Ct. 62, C.D. 4636 (1976), and J.E. Mamiye & Sons, Inc. v. United States, 85 Cust. Ct. 92, C.D. 4878 (1980), the court considered the use of various articles in the United States in order to determine whether they were classifiable within certain eo nomine provisions. Furthermore, we note that the language included in Additional U.S. Note 1(a) indicates that a tariff classification controlled by use is also determined in accordance with the use of the article in the United States.

Accordingly, traditional uses, from other countries regarding particular festivals, do not necessarily give rise to articles that are traditionally used in the United States as festive articles. Thus, regardless of the way such articles may be recognized in their country of origin, they may not be classifiable within heading 9505.

The fact that the Soda Pop figurine has a beard, moustache, and fat belly, and wears an oversized coat with buckle, a cap, and boots indicates that the article is identifiable upon importation as Santa Claus. The Kris Kringle and Dedt Moroz figurines, which do not possess most of these characteristics, are distinguishable only as an old man, or perhaps as a friar or cleric, and are not identifiable upon importation as Santa Claus. We note that the latter figurines are identified as "original designs depicting legendary Santas." Although the Santas depicted may be readily recognizable as traditional in other countries, they are not recognized as a substantial part of the U.S. tradition.

We also note that the Soda Pop figurine is three dimensional, because it is not designed or effective primarily as a flat or surface composition, but rather is specifically designed to give an illusion of depth or varying distances. See Webster's Third New International Dictionary 2474 (1971). For these reasons, the Soda Pop figurine is classifiable, pursuant to GRI 1, in 9505 as a festive article. See Headquarters Ruling Letters 951422, issued November 25, 1992 and 952520, issued October 22, 1992.

The Santa figurine is classifiable within subheading 9505.10 which provides for articles for Christmas festivities. At the eight digit subheading level, the Santa figure is not classifiable in subheadings 9505.10.10, 9505.10.15 and 9505.10.25 which cover Christmas ornaments of glass, wood and other, respectively. The Santa figure does not meet our criteria for Christmas ornaments. See HRL 951422, supra.

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 figurine is composed of plastic, it is classifiable in subheading 9505.10.40.

Because the Kris Kringle and Dedt Moroz figurines are not classifiable in 9505 as festive articles, they must be classified elsewhere. Heading 3926 provides for other articles of plastics or materials of headings 3901 to 3914. Since the plastic figurines are ornamental, they are classifiable in subheading 3926.40.00.

HOLDING:

The Soda Pop figurine remains classifiable in subheading 9505.10.4000, HTSUSA, as "Festive, carnival or other entertainment articles,...Articles for Christmas festivities and parts and accessories thereof: Other [than Christmas ornaments]: Of plastics." The general column one rate of duty is 8.4 percent ad valorem.

The Kris Kringle and Dedt Moroz figurines are classifiable in subheading 3926.40.00, HTSUSA, as "Other articles of plastics and articles of other materials of headings 3901 to 3914: Statuettes and other ornamental articles." The general column one rate of duty is 5.3 percent ad valorem.

NYRL 857808 is modified accordingly.

Sincerely,

John Durant, Director
Commercial Rulings Division

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