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HQ 952555


February 17, 1993

CLA-2 CO:R:C:M 952555 EJD

CATEGORY: CLASSIFICATION

TARIFF NO: 9505.10.50

Mr. John H. Heinrich
District Director
U.S. Customs Service
300 South Ferry Street
Terminal Island Room 2017
San Pedro, California 90731

RE: Protest No. 2704-92-100861; Porcelain Old World Santa Claus; subheadings 6914.10.00, 6913.10.50; headings 6913, 9505; ENs 69.13, 95.05; HQs 952520, 951422, 951394

Dear Mr. Heinrich:

This is in response to the Application for Further Review of Protest No. 2704-92-100861, dated February 21, 1992, which pertains to the tariff classification of four assorted porcelain decorated figurines of Old World Santa Claus ("Santa") under the Harmonized Tariff Schedule of the United States (HTSUS). A picture of the figurines was submitted for our examination.

FACTS:

The merchandise is four assorted porcelain decorated figurines of Old World Santa Claus from Taiwan. All four Santa figurines are sold as a set for approximately $14.60.

Each Santa is approximately 7 1/4 inches tall and has a ceramic face, white beard and moustache, hands and lower trunk. Each Santa is wearing a red cap with white trim around the front. Each Santa is holding a small pine tree. Three of the Santa figurines are wearing a full length red textile coat with white trim around the collar, hemline, front and sleeves with a black buckle belt or gold belt. One Santa is wearing an oversized coat with a black buckle, red pants and black boots. Three of the Santa figurines are holding bags of presents. The Santa with the gold belt is using a walking cane.

The protestant, Costco Wholesale Corporation, contends that the correct classification of these porcelain Santa figurines is as festive articles under subheading 9505.10.50, HTSUS.

The merchandise was classified upon entry under subheading 6914.10.00, HTSUS, which provides for other ceramic articles. It was finally liquidated under a more specific provision, subheading 6913.10.50, HTSUS, which provides for statuettes and other ornamental ceramic articles.

ISSUE:

Whether the porcelain Old World Santa Claus figurines are classifiable in heading 6913, HTSUS, as statuettes and other ornamental ceramic articles or in heading 9505, HTSUS, as festive articles?

LAW AND ANALYSIS:

The classification of goods under the HTSUS is governed by the General Rules of Interpretation (GRIs), taken in order. GRI 1 provides that classification shall be determined according to the terms of the headings and any relative section or chapter notes.

The two competing headings for these porcelain Santa figurines are the following:

Heading 6913, HTSUS, provides for "[s]tatuettes and other ornamental ceramic articles . . . [o]f porcelain or china . . . [o]ther . . . [o]ther."

Heading 9505, HTSUS, provides for "[f]estive, carnival or other entertainment articles, including magic tricks and practical joke articles; parts and accessories thereof."

The Explanatory Notes (ENs) are the official interpretation of the Harmonized Commodity Description and Coding System (HCDCS) at the international level. They provide a commentary on the scope of each heading of the Harmonized System and are thus useful in ascertaining the classification of merchandise under the System. The Explanatory Notes, although not dispositive, are to be looked to for the interpretation of the HTSUS. 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).

EN 69.13 states, in pertinent, at page 923, that:

The heading does not include articles falling in more specific headings of the Nomenclature even if they are suited by reason of their nature or finish for decorative

The heading covers:

(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., (animals, symbolic or allegorical figures, etc.) . . . .

EN 95.05 reads, in pertinent part, as follows:

This 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.

HCDCS, p. 1590.

The subject Santa figurines are not classifiable under heading 6913, HTSUS. In general, merchandise is classifiable in heading 9505, HTSUS, 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 Santa figurines, as a whole, it is evident that the figurines are 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 with those articles cited in the ENs to heading 9505, HTSUS, 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 heading 9505, HTSUS, as festive articles. See Headquarters Ruling Letter (HQ) 952520, dated October 22, 1992, where an Old World Santa figurine was classified as a festive article. See also HQ 951422, dated November 25, 1992, and HQ 951394, dated December 2, 1992.

The fact that the subject figurines have beards, moustaches and fat bellies, wear oversized coats with belt, caps and boots, and carry a sack of gifts, indicates that the subject figurines are identifiable upon importation as Santa Claus. Also, 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 subject Santa figurines are classifiable, pursuant to GRI 1, in heading 9505, HTSUS, as a festive article.

The Santa figurines are classifiable within subheading 9505.10, HTSUS, which provides for articles for Christmas festivities. As for the proper classification of the Santa figurines at the six digit subheading level, subheadings 9505.10.10, 9505.10.15 and 9505.10.25, HTSUS, 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 9505.10.50, HTSUS, covers other Christmas articles made of other materials. As the Santa figurines are not composed of plastic, they are classifiable in subheading 9505.10.50, HTSUS.

HOLDING:

The Old World Santa Claus figurines are classifiable in subheading 9505.10.50, HTSUS, as "[f]estive, carnival or other entertainment articles...[a]rticles for Christmas festivities and parts and accessories thereof...[o]ther [than Christmas ornaments]...[o]ther," with a rate of duty of 5.8 percent ad valorem.

The protest should be granted in full. A copy of this decision should be attached to the Customs Form 19 and provided to the protestant as part of the notice of action on the protest.

Sincerely,

John Durant, Director

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