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HQ 954253


August 16, 1993

CLA-2 CO:R:C:F 954253 LPF

CATEGORY: CLASSIFICATION

TARIFF NO.: 9505.10.5000

Mr. Roger Liu
President
L'Art de Chine
411 Allan Street
Daly City, CA 94014

RE: Classification of decorative articles depicting Santa Claus; Heading 9505 as festive, carnival or other entertainment articles; Not heading 6304 as other furnishing articles.

Dear Mr. Liu:

This is in response to your letter of April 23, 1993, requesting the classification of decorative articles depicting Santa Claus under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). You submitted samples with your request for a binding ruling.

FACTS:

The decorative articles, imported from China, are constructed on a cardboard frame with a polyester or sponge filler and are covered in a 100% woven cotton fabric. The decorative portion also is 100% cotton fabric. The articles are designed to be hung from a wall, window, etc. within the home and are identifiable as follows: Santa and Bear (Style #11-548), Santa Noel (Style #11- 549), Jolly Santa (Style #11-563), and The Kiss (Style #11-902).

ISSUE:

Whether the decorative articles depicting Santa Claus are classifiable in heading 9505 as festive, carnival or other entertainment articles or in heading 6304 as other furnishing 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. 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 GRI's may then be applied. 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 Claus figures are made of non-durable material. Customs will consider articles, such as the Santa Claus figures, 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 Santa Claus figures serve no useful function besides their role as decoration.

Finally, when examining the Santa Claus figures, as a whole, it is evident that the articles are traditionally associated or used with the particular festival of Christmas. Santa Claus is a unique form that traditionally has been associated, particularly and exclusively, with Christmas. Accordingly, these figures are ejusdem generis with those articles cited in the EN's to 9505, as exemplars of traditional, festive articles. 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.

The fact that the subject figures, with the exception of "The Kiss" (Style #11-902) have a beard, moustache and fat belly, wear boots, an oversized fur-lined suit with a belt and buckle, and a cap, indicates that the articles are identifiable upon importation as Santa Claus. Also, these articles qualify as 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). Although these figures can be hung from a wall, window, etc., because they contain a polyester or sponge filler and are physical manifestations of the form of Santa Claus in and of themselves, they are sufficiently three dimensional to warrant classification within heading 9505. "The Kiss" (Style #11-902) which comprises a face kissing under mistletoe, also is identifiable as the form of Santa Claus.

The terms of the heading and the applicable EN's indicate that the Santa Claus figures are classifiable, pursuant to GRI 1, in 9505 as festive articles. See HRL 952520, issued October 22, 1992 and 952834, issued January 6, 1993.

The Santa figures are 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, the Santa figures do not meet the criteria for a Christmas ornament. See HRL's 952520 and 952834, 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 figures are composed of materials other than plastics, they are classifiable in subheading 9505.10.50. Because the articles are appropriately provided for in subheading 9505.10.50, they are not classified within heading 6304 as other furnishing articles.

HOLDING:

The Santa & Bear (Style #11-548), Santa Noel (Style #11-549), Jolly Santa (Style #11-563), and The Kiss (Style #11-902) are classified in subheading 9505.10.5000, HTSUSA, as "Festive, carnival or other entertainment articles,...: Articles for Christmas festivities and parts and accessories thereof: Other: Other." The applicable rate of duty is 5.8 percent ad valorem.

Sincerely,

John Durant, Director
Commercial Rulings Division

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