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HQ 952520


October 22, 1992

CLA-2 CO:R:C:F 952520

CATEGORY: CLASSIFICATION

TARIFF NO.: 9505.10.50

Ms. Madeline Salgo
Kurt S. Adler, Inc.
1107 Broadway
New York, NY 10010-2872

RE: Reconsideration of HRL's 086587, 083816; Old World Santa figure; Heading 9505, Festive article; Not 9502, Doll; HRL 088584

Dear Ms. Salgo:

This is in response to your letter dated September 1, 1992, requesting reconsideration of Headquarters' Ruling Letter (HRL) 086587, issued August 8, 1990, which affirmed HRL 083816, issued May 30, 1989. In those rulings an Old World Santa figure was classified in subheading 9502.10.40 as, "Dolls representing only human beings and parts and accessories thereof: Dolls, whether or not dressed: Other [than stuffed]: Not over 33 cm in height." We have reviewed that ruling and have found it to be partially in error. The correct classification is as follows.

FACTS:

The article, imported from Taiwan, is known as an Old World Santa, style J 663. It has a ceramic face, beard, hands and lower trunk. The figure is wearing a full length red textile coat with beige trim around the collar, hemline, front and sleeves. It is holding a green colored textile bag including wrapped presents, candy canes, a musical instrument and a small pine tree. The figure is holding two small bells.

ISSUE:

Whether the Old World Santa figure is classifiable in heading 9502 as a doll representing only human beings 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.

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

Next, the article's primary function is decorative, as opposed to, utilitarian. It is apparent, the Santa figure serves no useful function besides its role as a decoration.

Finally, when examining the Santa figure, as a whole, it is evident that the article is traditionally associated or used with the particular festival of Christmas. Generally, figurines and dolls are not traditionally associated or used with the particular festival of Christmas; they are not akin to 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 HRL 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 instant figure has a beard, moustache and fat belly, wears an oversized coat with buckle, a cap and boots, and carries a sack of gifts, indicates that the article is identifiable upon importation as Santa Claus. Also, the article 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 Santa Claus figure is classifiable, pursuant to GRI 1, in 9505 as a festive article.

The Santa figure is classifiable within subheading 9505.10 which provides for articles for Christmas festivities. As for the proper classification of the Santa figure 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 figure does not meet these criteria. Consequently, it is not classifiable as a Christmas ornament.

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 figure is not composed of plastic, it is classifiable in subheading 9505.10.50.

HOLDING:

The Old World Santa figure is 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.

HRL's 083816 and 086587 are modified accordingly.

Sincerely,

John Durant, Director
Commercial Rulings Division

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