CLA-2 CO:R:C:G: 085271 DPS
Joel K. Simon, Esquire
Serko & Simon
One World Trade Center
Suite 3371
New York, N.Y. 10048
RE: Plastic Santa Figurine
Dear Mr. Simon:
Your letter of July 11, 1989, on behalf of Russ Berrie &
Company, Inc., to our New York office has been referred to this
office for reply concerning the tariff classification under the
Harmonized Tariff Schedule of the United States Annotated
(HTSUSA), of a plastic Santa Claus figurine. A sample of the
figurine, which is to be imported from Hong Kong, was provided
with your request.
FACTS:
The subject Santa figurine is two inches tall and is
described as a comical representation of a jogging Santa Claus.
Santa is wearing red shorts, a green and white headband and
sneakers, and is carrying a radio with earphones. The words
"Santa Claus is Jogging to Town" appear on his stomach. The
figure is attached to a plastic base and can stand on any flat
surface.
The importer suggests that the plastic Santa figurine should
be classified as a statuette and other ornamental article of
plastic, under subheading 3926.40.0000, HTSUSA.
ISSUE:
Whether the plastic Santa figurine at issue is considered a
an article for Christmas festivities, classifiable under
subheading 9505.10, HTSUSA; or whether the figurine should be
classified as a statuette or other ornamental article,
classifiable under subheading 3926.40, HTSUSA.
LAW & ANALYSIS:
The General Rules for the Interpretation of the Harmonized
System (GRI's) govern classification under the Harmonized Tariff
Schedule. According to GRI 1, the primary consideration in
determining whether merchandise should be classified in a heading
should be given to the language of the heading and any relevant
chapter or section notes, and, provided such headings or notes do
not otherwise require, according to the remaining GRI's, taken in
order. The subheadings at issue in this case are:
(a) 3926.40, Other articles of plastics and
articles of other materials of headings 3901 to
3914: Statuettes and other ornamental articles;
and
(b) 9505.10, Festive, carnival or other
entertainment articles, including magic tricks and
practical joke articles; parts and accessories
thereof: Articles for Christmas festivities and
parts and accessories thereof: ...
The subject Santa figurine could be considered to be a
plastic statuette or other ornamental article, as well as a
festive article for Christmas. Because the subheadings set forth
above both appear to describe the subject merchandise, and
classification cannot be determined by applying GRI 1 alone,
reference to the subsequent GRI's is necessary.
When, as here, goods are prima facie classifiable under two
or more headings, GRI 3 is to be applied. GRI 3(a) requires that
the heading which provides the most specific description of the
article shall be preferred over headings providing a more general
description. Therefore, the inquiry becomes which of the
competing provisions most accurately describes the subject Santa
figurine.
The Explanatory Notes to the HTSUSA, which constitute the
official interpretation of the tariff at the international level,
provide further guidance in determining the scope of each
provision. With regard to Heading 9505, HTSUSA, the provision
for festive articles, Explanatory note 95.05, at p. 1590, states
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.
...
For the most part, the items described above which fall under
Heading 9505, HTSUSA, tend to have no function other than
decoration.
It is Customs' position that an article by its shape,
design, ornamentation and appropriate use in connection with a
recognized festive holiday, is an article that falls under
Heading 9505, HTSUSA. Here, the subject Santa figure is a
decorative article which depicts a character traditionally
associated with Christmas. Upon review of the relevant
Explanatory Notes and an examination of the submitted sample, it
is clear that the subject Santa figurine fits squarely within
subheading 9505.10, HTSUSA.
With regard to Heading 3926, the provision for other
articles of plastics, Explanatory Note 39.26, at p. 575, states
that the "heading covers articles, not elsewhere specified or
included, of plastics....They include:...(3) statuettes and other
ornamental articles."
When comparing the two competing four digit headings, there
is no question that 9505, HTSUSA more accurately describes the
subject merchandise than 3926, HTSUSA. Furthermore, because
9505.10, HTSUSA applies specifically to Christmas articles, while
3926.40, HTSUSA applies generally to statuettes and other
ornamental articles of plastic, it is Customs' view that the
Christmas article provision more specifically describes the Santa
figurine at issue.
The final issue requiring resolution is which eight digit
category the plastic Santa figurine falls under. 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 requires that the following three
criteria be met: (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 subject Santa figurine does not appear to meet
the first two requirements. It is not considered to be a
Christmas tree ornament nor does have a loop attached to it by
which it can be hung from a tree. Therefore, it cannot be
considered a Christmas ornament for tariff purposes.
Subheading 9505.10.30, HTSUSA covers nativity scenes and
figures thereof. The subject Santa figurine cannot be considered
to be a nativity scene nor a part thereof. Inasmuch as the only
remaining subheadings within Heading 9505, HTSUSA, fall under the
"Other:" category, subheading 9505.10.4000, HTSUSA, which covers
other Christmas articles of plastics, is the appropriate
provision covering the instant merchandise.
HOLDING:
In accordance with the rationale set forth above, the
subject Santa figurine is properly classifiable under subheading
9505.10.4000, HTSUSA, the provision for Christmas articles,
other, of plastics. Items classified under this subheading are
subject to a duty rate of 8.4 percent ad valorem.
Sincerely,
John Durant, Director
Commercial Rulings Division