CLA-2 CO:R:C:F 952520
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
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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).
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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:
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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