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HQ 956912




March 3, 1995

CLA-2 CO:R:C:F 956912 RC

CATEGORY: CLASSIFICATION

TARIFF NO.: 9505.10.4020

Mr. Howard Adler
Kurt S. Adler, Inc.
1107 Broadway
New York, New York 10010-2872

RE: Classification of Santa Claus figures in heading 9505, HTSUSA;
Festive articles; HRLs 952520, 955802, 9542553

Dear Mr. Adler:

This is in response to your letter dated July 6, 1994, requesting the proper classification of Santa Claus figures, under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). You submitted samples with your request for a binding ruling.

FACTS:

The merchandise at issue, imported from China or Taiwan, consists of five figures which you claim resemble Santa Claus.

Item #J9307, "Sawdust Santa", is a 10 «-inch tall plastic and fabric figure. It depicts an old man with spectacles and rosy cheeks sporting a long full white beard and moustache. He wears a red and white striped baseball cap, a red and white baseball jersey, baggy (winter) white trousers with decorative red and white trim, and a big-buckle black belt around his large belly. His jersey is emblazoned "25". He wears big black winter boots on his feet, a baseball mitt with ball on one hand, and carries a bat with the other. At his feet is a large stuffed red sack.

Item #J9300, "Sawdust Golf Santa", is a 10 «-inch tall plastic and fabric figure. It depicts an old man with spectacles and rosy cheeks sporting a long full white beard and moustache. He wears a plaid red, white, and black golf cap; a Nordic designed red, white, and green sweater; green knickers trimmed in wool; and big black winter boots. He has a large belly. This figure also carries a golf club and stands next to a golf bag with clubs.

Item #W1532, "Saint Nicholas the Bishop", is a 12-inch tall plastic and fabric figure. It depicts an old man with rosy cheeks sporting a long full white beard and moustache. He wears a bishop's vestments with a cope and miter. In one hand, he carries a staff and in the other, a large sack of fruit, candy canes, and gingerbread men.

Item #W1667, "Postman Santa on Tricycle", is an 11-inch tall plastic and fabric figure seated on a large tricycle. It depicts an old man with rosy cheeks sporting a long full white beard and moustache. He wears a red postman's hat, a large Santa-style oversized red coat trimmed with white wool. He carries a large sack of letters, fruit, packages, and an unadorned pine tree as cargo. His pocket is filled with letters and over his shoulder, he carries a "mail bag" decorated with holly.

Item #W1523, "Santa in Beige Coat", is an 11-inch tall plastic and fabric figure. It depicts an old man with rosy cheeks sporting a long full white beard and moustache. He wears the hat similar to the hat traditionally associated with Santa Claus, trimmed with wool or fur around the crown. He wears a long winter white coat trimmed in wool or fur and a big-buckle black belt around his large belly. He also wears large black boots. He carries presents and a little Christmas tree. His pockets overflow with fruit. His face appears to be made from the same mold as samples in HRL 956911.

ISSUE:

Whether the Santa figures are classifiable in heading 9505 as festive articles, 3926 as other articles of plastics, or 9502 as dolls.

LAW AND ANALYSIS:

The General Rules of Interpretation (GRIs) taken in their appropriate order provide a framework for classification of merchandise under the HTSUS. 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 (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 HTSUS by offering guidance in understanding the scope of the headings and GRIs.

Heading 9505 provides for, inter alia, festive, carnival and other entertainment articles. The ENs 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 figures are made of non-durable material. Customs will consider articles, such as the Santa 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 figures serve no useful function besides their role as decoration. Finally, when examining the Santa figures, as a whole, it is evident that the articles are traditionally associated or used with the particular festival of Christmas.

We find that each submitted sample is a three-dimensional figure. Although each is dressed in a different outfit, they are all easily identifiable as Santa at the time of importation. Most if not all of the submitted Santa Claus figures appear to have a head cast from the same mold. This alone was enough in HRLs 955802 and 954253 (style # 11-902) for Customs to classify figures in 9505 even though they were comprised primarily of a "Santa face." Here, taken as a whole, each Santa is "identifiable" as Santa at the time of importation. The Santa qualities set forth in HRL 952520 were general observations, constituting helpful examples of what Santa may look like, but they are not meant to serve as "guidelines." Because there are many characteristics which identify Santa, there is no single characteristic attributed to Santa which exclusively identifies him as Santa. For example, we take the depiction of Santa as Saint Nicholas the Bishop to be a traditional representation of the Santa Claus figure, even if not frequently seen. The words "Santa Claus" are derived from "Saint Nicholas" according to common dictionary definitions.

The submitted figures are identifiable as Santa at the time of importation. As such, they are classified as festive articles ("Santa"), distinguishable from other old men. For these reasons, the subject Santa figures are classifiable, pursuant to GRI 1, in 9505 as festive articles. Subheading 9505.10.4020 covers other Christmas articles made principally of plastic. As Items #J9307, #J9300, #W1532, #W1667, and #W1523, are composed principally of plastic, they fall into subheading 9505.10.4020.

HOLDING:

We find that all of the submitted sample figures are identifiable as Santa at the time of importation and thus classified as festive articles. Items #J9307, #J9300, #W1532, #W1667, and #W1523 are classifiable in subheading 9505.10.4020, HTSUSA, as "Festive, carnival or other entertainment articles,...: Articles for Christmas festivities...: Other: Of plastics, Other." The general column one rate of duty is free as of January 1, 1995.

Sincerely,

John Durant, Director
Commercial Rulings Division

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