CLA-2 CO:R:C:G 087160 STB
TARIFF NOs.: 9505.10.40, 9505.90.60, 3926.40.00
Mr. Christopher L. Thayer
Hallmark Cards, Inc.
2501 McGee - Mail Drop #376
P.O. Box 419580
Kansas City, Missouri 64141-6580
RE: Figurines
Dear Mr. Thayer:
This is in response to four inquiries from you, all of which
are dated either April 17, 1990 or April 19, 1990, concerning the
classification of a total of nine different figurines that will
be manufactured in Thailand, the Philippines, and Sri Lanka. You
submitted samples of each figurine with your request.
FACTS:
Eight of the subject figures are included in the "Merry
Miniature" series. These eight figures are all constructed of
high impact styrene. The item described as stock number 350 QFM
1616 is a small scarecrow figure and is approximately two inches
in height. The clothes of the figure are colored purple and the
hat is yellow; the face has black eyes and an orange nose. You
state that the figure will be sold "at the retail level during
the Halloween season as part of a Shadow Box Promotion." The item
identified as stock number 250 QFM 1646 is a snowman figure. It
is approximately 1-1/4 inches in height and is mostly white with
a red and green hat. It has black shoes and is holding a sign
that has the words "Let it snow" printed on one side. The item
identified as stock number 350 QFM 1663 is a Santa Claus figure
and is approximately 1-1/2 inches in height. The figure is
predominately red and white in color and appears to be holding a
drinking glass and a cookie with a bite taken out of it. Item
300 QFM 1787 is a figure of a puppy in a just opened gift box and
is approximately 1-1/4 inches in height. The box is green with
red ribbon; there is a sign on the box which reads "open me
first" and "1991." Item 250 QFM 1759 is a figure of a small
white lamb, approximately 1-1/2 inches tall. The figure has a
lavender ribbon around its neck and the word "peace" written in
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blue at the base.
Also included in the Merry Miniature series are three
samples which are all similar in that they are referred to as
"cookie" miniatures and have the appearance of small cookies.
Item 300 QFM 1767 is described as the "Cookie Santa Merry
Miniature" and is a small Santa figure that is approximately
1-1/2 inches in height. It is red and white on the front and
brown on the sides and back. The base of the figure is imprinted
with "1991" and a red and green holly sprig. Item 300 QFM 1769 is
described as a "Cookie Elf Merry Miniature" and is approximately
1-1/4 inches in height. The figure is predominately brown but is
wearing a green shirt with red buttons and is shown to have a
white beard. The base is imprinted with "1991" and a very small
green Christmas tree. Item 300 QFM 1777 is described as a
"Cookie Reindeer Merry Miniature" and is approximately 1-1/2
inches in height. The figure is predominately brown, with a
small red and green holly branch attached to the neck. The base
is imprinted with the date "1991" and a small gold star.
The figure that does not appear to be a part of the "Merry
Miniature" series is described as stock number 1400 QC 9646,
"German Girl Figurine." This item is approximately 3-1/4 inches
tall and is constructed of fiber reinforced plastic. The
figurine's dress is several different colors but is predominately
white (the apron) and green (the skirt). There is some red in
the blouse. The arms are outstretched and she is holding a sign
that reads "Frohliche Weihnachten" which is the German
translation for "Merry Christmas."
ISSUE:
What is the proper classification for these figures?
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
relative section or chapter notes and, unless otherwise required,
according to the remaining GRI's taken in order.
The headings at issue in this case are:
(a) 9505, HTSUSA, Festive, carnival or other entertainment
articles, including magic tricks and practical joke articles;
parts and accessories thereof:...
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(b) 3926, HTSUSA, Other articles of plastics and articles
of other materials of headings 3901 to 3914:...
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.,
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.
It is our determination that six of the nine figures are
properly classifiable in Heading 9505, HTSUSA. The two Santa
Claus figures are self explanatory; Santa Claus is immediately
associated with Christmas. The reindeer "cookie" figure
qualifies for classification in Heading 9505, HTSUSA, because
reindeer are also traditionally associated with Christmas.
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Moreover, this reindeer is ornamented with a carving of holly, a
traditional Christmas decoration. The holly is painted red and
green. The yellow star and "1991" imprinted on the base are
further indications of the Christmas theme. The elf "cookie"
figure also represents a creature that is traditionally
associated with Christmas; the green Christmas tree that is
painted on the base erases any doubt as to the intended theme of
this figure. The substantial use of traditional Christmas colors
and the imprint of "1991" further strengthen the overall
Christmas theme of the item.
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. The figures are extremely small and
lightweight and the Christmas theme is so strong that they have
little actual use or value except to decorate the home during the
Christmas season.
The scarecrow figure represents a creature that is
traditionally associated with Halloween. This association
between scarecrows and Halloween has been established in
Headquarters Ruling Letters (HRLs) 085320, 085321 and 085322.
The figure is small, and has no use other than to serve as a
decoration during Halloween season.
The "German Girl Figurine" establishes its Christmas theme
with the sign displaying the German translation for "Merry
Christmas." The presence of these words renders it very unlikely
that the item will be used for any reason other than decoration
during the Christmas season. Additionally, the item is painted
with traditional Christmas colors. This item, although larger
than the other subject figures, does not possess the separate
garments or extremities capable of manipulation that one could
associate with dolls.
These six items also qualify for classification in Heading
3926, HTSUSA. When goods are prima facie classifiable under
two or more headings, we must refer to GRI 3. GRI 3 states, in
pertinent part:
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.
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In this case, the competing headings are 9505 and 3926. Heading
9505, which covers "[f]estive, carnival or other entertainment
articles..." is a more specific provision than the basket
provision of Heading 3926, HTSUSA, which covers "Other articles
of plastics...."
Finally, for the five Christmas - related figures,
classification at the eight digit subheading level must be
determined. 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 four 9505 items fall into the
"other" provision.
It is our determination that the remaining three figures
under discussion are not clearly festive and thus are not
properly classifiable in Heading 9505. The snowman represents a
winter theme but not necessarily a Christmas or other festive
theme. Spare use is made of traditional Christmas colors (only
the hat is red and green) and there are no other features on the
figure to connect it with a Christmas theme. The "peace lamb"
uses no real Christmas colors. The word "peace" and the figure
of a lamb do not necessarily connote a Christmas theme; although
it is acknowledged that the lamb is sometimes used as a Christian
symbol. The figure representing a puppy in a gift box does not
exhibit a clear enough Christmas connection to merit
classification under Heading 9505, HTSUSA. Although it is
possible that this item may have decorative uses on other festive
occasions, i.e. in addition to Christmas, it is also possible
that this item could be used year round as a small statuette. It
is not the class or kind of article typically associated with a
particular festive occasion as described in Explanatory Note
95.05.
HOLDING:
Five of the nine samples submitted 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; Other: of
plastics. The applicable duty rate is 8.4% ad valorem. The five
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samples that fall under this heading are the two Santa figures,
the "cookie" elf figure, the "cookie" reindeer figure, and the
"German Girl Figurine." One sample, the scarecrow figure, is
properly classifiable under subheading 9505.90.60, HTSUSA, as a
festive, carnival or other entertainment article, other, other.
The applicable duty rate for that sample is 3.1% ad valorem.
Three of the submitted samples are properly classifiable in
subheading 3926.40.00, HTSUSA, the provision for other articles
of plastics and articles of other materials of headings 3901 to
3914: statuettes and other ornamental articles. These three
figures are the snowman, the "puppy in box", and the "peace snow
lamb." The applicable duty rate for these three figures is 5.3%
ad valorem.
Sincerely,
John Durant, Director
Commercial Rulings Division