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HQ 953427


June 4, 1993

CLA-2 CO:R:C:F 953427 GGD

CATEGORY: CLASSIFICATION

TARIFF NO.: 9505.10.5000

Ms. Rosalie Althoff
P.O. Box 20, Highway 52 South
Cannon Falls, Minnesota 55009-0020

RE: Red Santa Candleholder Smoker, Santa with Sack Nutcracker, and Wood Nested Santa; Festive Articles

Dear Ms. Althoff:

This letter is in response to your inquiry of January 4, 1993, concerning the classification under the Harmonized Tariff Schedule of the United States (HTSUSA), of the three separate items identified above, which will be imported from China and Germany by Midwest Importers of Cannon Falls, Inc. A sample of each item was submitted with your inquiry.

FACTS:

The sample figures, all of which are comprised essentially of wood, are identified by three separate item numbers. Item no. 02703-5 consists of a Santa figure with a white (wooden) beard, a red robe, and a (wooden) sack of gifts. The figure, which measures approximately 7 inches high, holds a long-handled smoker's pipe in one hand, and a small, upturned, brass-colored bowl (into which a small candle may be inserted) in the other.

Item no. 07102-1 consists of a Santa figure with colors and features similar to those of item 02703-5, but with a beard and hair comprised of animal fur, and white textile fabrics on top of and bordering the red (wooden) hat. The figure measures approximately 10 inches in height, and carries a (wooden) bell and burlap sack, from which protrude small gifts and a bundle of sticks.

Item no. 07047-5 consists of 5 pieces, which are graduated sizes of cone-shapes painted as gift-bearing Santas, with bases or "nest" portions into and/or onto which the Santa figures are set. The three "nested Santas," range in height from approximately 1-1/2 inches (without base) to 5 inches including the base, with the larger figure(s) and base(s) containing the smaller one(s).

ISSUE:

Whether the articles are classifiable in heading 9505, HTSUSA, as festive articles; or in heading 9502, HTSUSA, as dolls.

LAW AND ANALYSIS:

Classification under the HTSUSA is made in accordance with the General Rules of Interpretation (GRIs). The systematic detail of the harmonized system is such that virtually all 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. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs may then be applied. The Explanatory Notes (ENs) 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 GRIs.

Heading 9502, HTSUSA, provides for dolls representing only human beings and parts and accessories thereof. Although each of the three items may be classifiable as dolls, an examination of the provisions of competing heading 9505, HTSUSA, may indicate that the articles are more properly classified there.

Heading 9505, HTSUSA, provides for, among other items, festive, carnival, and other entertainment articles. The EN to 9505 indicates 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 item is not dispositive of its classification and, consequently, does not transform an item into a festive article.

Each of the three articles is made of non-durable material. Customs considers articles such as these to be made of non- durable material since they are not designed for sustained wear and tear, and are not purchased for their extreme worth or value (as would be decorative, yet costly pieces of art or crystal). Further, despite the fact that item nos. 02703-5 and 07102-1 are able to function as a candleholder and a nutcracker, respectively, the primary function of all three items is decorative, as opposed to utilitarian.

Although in general, figurines and dolls are not traditionally associated or used with a particular festival (i.e., they are not of the same type of articles cited in the ENs to heading 9505 as examples of traditional festive articles),

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. We note that item no. 07047-5 (the wood nested Santa) is an example of the classic "matreshka," a doll which is the product of East-European folk art/crafts. Although lacking the palpable features (head, torso, extremities, gifts, etc.) of the other two items, the wood nested Santa is in three dimensional form. It is our determination that all three articles would be identified as forms of Santa Claus upon importation, and that they meet the criteria for classification as festive articles.

HOLDING:

The articles identified as red Santa candleholder smoker, Santa with sack nutcracker, and wood nested Santa, item nos. 02703-5, 07102-1, and 07047-5, respectively, are classified in subheading 9505.10.5000, HTSUSA, as "Festive, carnival or other entertainment articles...parts and accessories thereof: Articles for Christmas festivities and parts and accessories thereof: Other: Other." The general column one rate of duty is 5.8 percent ad valorem.

Sincerely,

John Durant, Director

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