CLA-2 CO:R:G 086772 STB
Joel K. Simon, Esq.
Serko & Simon
One World Trade Center
Suite 3371
New York, N.Y. 10048
RE: Christmas Little Bitty Bits
Dear Mr. Simon:
Your letter of March 15, 1990 concerns the tariff
classification of six small plastic figures manufactured in
China. Samples were submitted with your request.
FACTS:
The six samples, known as style number 1078, measure
approximately 1-1/2 to 1-3/4 inches in height. They represent
various items/beings that are described as follows: 1. a figure
of Santa Claus wearing traditional Christmas colors; 2. a
Christmas tree that is green in color with human features,
including arms and legs. The legs are colored red and a yellow
star is located at the top of the tree. The body of the tree is
adorned with yellow colored stars and red and yellow decorations
that are round in shape as if to simulate Christmas tree
ornaments on the tree. Human features representing eyes, a nose
and a mouth are also present.; 3. a toy soldier wearing a red
jacket with green pants. He is holding a red and white striped
candy cane in his hands. His black hat is decorated with berries
and holly in front.; 4. a comical representation of a reindeer
with a red, green and white striped scarf, a red nose and black
sunglasses; The words "Have a Cool Yule" appear on the base of
this figure.; 5. a panda bear on red skis with the words "Merry
Kissmas" located on the bottom of the skis, and 6. a puppy
sitting on a red sleigh, wearing a green and white striped scarf.
These items are marketed under the name "Christmas Little Bitty
Bits."
ISSUE:
What is the proper classification of the six samples
submitted which are marketed as "Christmas Little Bitty Bits?"
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LAW AND ANALYSIS:
The General Rules of Interpretation (GRI's) set forth the
legal framework in which merchandise is to be classified under
the Harmonized Tariff Schedule of the United States Annotated
(HTSUSA). GRI 1 requires that classification be determined first
according to the terms of the headings of the tariff and any
relevant section or chapter notes and, unless otherwise required,
according to the remaining GRI's taken in order.
The subheadings at issue in this case are:
(a) 9505.10, HTSUSA, 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:...
(b) 3926.40, HTSUSA, Other articles of plastics and
articles of other materials of headings 3901 to 3914: Statuettes
and other ornamental articles;...
It appears from the above language that at least five of
six of the subject figures could possibly be classified in both
subheadings. Additionally, there is no language in either the
notes or Explanatory Notes to chapters 95 and 39 that would
exclude these figures from either chapter or these particular
subheadings.
It is our determination that five of these figures are
properly classifiable in Heading 9505, HTSUSA. The figure
representing a puppy on a sleigh, however, is properly
classifiable in Heading 3926, HTSUSA. This determination is based
on the nature of the articles themselves and the application of
GRI 3(a).
The Explanatory Notes, which constitute the official
interpretation of the tariff at the international level,
provide guidance as to what types of items are to be classified
in Heading 9505, HTSUSA. 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.,
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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 Heading 9505, HTSUSA, generally
covers articles which by their shape, design, and ornamental
characteristics fall into that class of goods which are
appropriately used in connection with a recognized festive
holiday. The Christmas theme is readily apparent in five of the
six figures. The Santa Claus figure and the Christmas Tree
figure are self explanatory. If there were any doubt about the
reindeer figure, this is assuaged by the words "Have a Cool Yule"
which appear on the figure. Although a Panda bear is not
necessarily a Christmas character, the words "Merry Kissmas" on
the bottom of the snow skis, together with the extensive use of
traditional Christmas colors, clearly indicates that this item is
intended for use during the Christmas period. The extensive use
of Christmas colors on the toy soldier, together with the large
candy cane he is holding and the holly decoration on the hat are
indicators that this item is intended to be associated with
Christmas.
The only figure for which the Christmas connection is not
clear is that figure which represents a puppy sitting on a
sleigh. The figure definitely represents a winter theme, but not
necessarily a Christmas theme. Although Christmas colors are
used-- the sleigh is bright red and the scarf is green--these
colors are not as obvious as they are on the other figures. No
words appear on this figure to connect it with the Christmas
season.
All of these items are marketed, sold and most likely used
as Christmas display figures. They have no extremities or parts
which can be manipulated; they are not intended to be
manipulated or played with. There is no intention that they be
used on a year round basis and, with the exception of the
puppy/sleigh figure, they have little actual use or value except
to decorate the home during the Christmas season; this is the
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intended use.
When goods are prima facie classifiable under two or more
headings, as is the case with five of these figures (the
puppy/sleigh figure is only classifiable in Heading 3926), we
must refer to GRI 3. GRI 3 (a) states, in pertinent part:
3. When by application of rule 2 (b) or for any
other reason, goods are, prima facie,
classifiable under two or more headings,
classification shall be effected as follows:
(a) The heading which provides the most
specific description shall be preferred to
headings providing a more general
description.
In this case, it is clear that Heading 9505, which covers
"[f]estive, carnival or other entertainment articles..." provides
a much more accurate and specific description of these five items
than does the basket provision of Heading 3926, HTSUSA, which
covers "Other articles of plastics...."
The final issue requiring resolution is the question of
which eight digit category the five 9505 figures should properly
fall under. Subheading 9505.10 provides for articles for
Christmas festivities. Those articles are further subdivided at
the eight digit level into Christmas ornaments, nativity scenes
and other. These items are not properly classified under
nativity scenes because the figures do not represent the
characters of such a scene. These figures are also not properly
classifiable as Christmas ornaments because Customs has
determined that, for tariff purposes, to qualify as a Christmas
ornament the item must be marketed and sold as a Christmas tree
ornament, that there must be some method, generally a loop
attached to the top to secure or hang the item on a tree, and
that the item not be too big or too heavy to be hung or attached
to a tree. Accordingly, the five subject Christmas Little Bitty
Bits figures fall into the "Other" provision.
In your request, you contend that an item need not be a
Christmas "tree" ornament in order to be classifiable as a
Christmas ornament. In support of this argument you refer to
Artiflor Mfg. Co. v. United States, 66 Cust. Ct. 82, C.D. 4171
(1971) in which the court ruled that it was the intent of
Congress not to limit the term "Christmas ornaments of glass" in
the Tariff Schedules of the United States (TSUS) only to
Christmas tree ornaments. This argument is not accepted because
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cases interpreting the language of the TSUS do not necessarily
have precedent value when discussing the HTSUSA. Under the
HTSUSA. the rationale for limiting the Christmas ornament
subheading to items which are hung or affixed to Christmas trees
is found in the commercial reality of the Christmas ornament
market, and the Explanatory Notes which generally distinguish
between tree decorations and other decorations traditionally
associated with Christmas.
HOLDING:
Five of the six samples submitted, marketed as "Christmas
Little Bitty Bits", are properly classifiable under subheading
9505.10.40, HTSUSA, as 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: Other: of
plastics. The applicable duty rate is 8.4% ad valorem. The five
samples that fall under this heading are the Santa figure, the
Christmas tree figure, the toy soldier, the reindeer and the
panda bear figure.
The puppy/sleigh figure is properly classifiable in
subheading 3926.40, HTSUSA, the provision for other articles of
plastics and articles of other materials of headings 3901 to
3914: Statuettes and other ornamental articles. The applicable
duty rate for this figure is 5.3% ad valorem.
Sincerely,
John Durant, Director
Commercial Rulings Division