CLA-2 CO:R:C:F 951459 LPF
Mr. Joe Schmid
110 West Ocean Blvd., Suite 307
Long Beach, CA 90802
RE: Modification of NYRL 857808; "Dedt Moroz," "Kris Kringle,"
and "Soda Pop" poly-resin figurines; Heading 9505, HTSUSA,
Festive articles; Heading 3926, HTSUSA, Other articles of
plastics; HRL 951422, 952520
Dear Mr. Schmid:
In New York Ruling Letter (NYRL) 857808, issued December 4,
1990, poly-resin figurines, from Taiwan, were classified in
subheading 9505.10.40, Harmonized Tariff Schedule of the United
States Annotated (HTSUSA), as "Festive, carnival or other
entertainment articles,...: Articles for Christmas festivities
and parts and accessories thereof: Other [than Christmas
ornaments]: Of plastics." We have reviewed that ruling and have
found it to be partially in error. The correct classification is
The articles at issue include "Dedt Moroz" (Item # 1651),
"Kris Kringle" (Item # 1657), and "Soda Pop" (Item # 1658). The
figurines are made from unsaturated poly-resin and calcium
carbonate. "Dedt Moroz" is described as Russia's "Grandfather
Frost" who rewarded good behavior by bestowing diamonds and froze
those who angered him. The figurine, appearing to be blown back
from the wind, is wearing a wind-blown, faded cloak, cap, and ice
boots, has a beige moustache and beard, and is holding a walking
stick. "Kris Kringle" is described as the derivative of Christ
kindli, German for Christchild. The thin figurine has a beard
and moustache, is wearing a long, flowing cloak and hood, and is
holding a pine tree. "Soda Pop" has a beard, moustache and fat
belly, is wearing an oversized, fur-lined coat with buckle, a
cap, and boots, and is holding a bottle of soda pop.
Whether the figurines are classifiable in heading 3926 as
other articles of plastics or rather in heading 9505 as festive
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
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
(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,
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 figurines are made of non-durable material.
Customs will consider articles, such as the Santa figurines, 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 figurines serve no
useful function besides their role as decoration.
Finally, when examining the Soda Pop figurine, as a whole,
it is evident that the article is traditionally associated or
used with the particular festival of Christmas. This is not the
case with the Kris Kringle or Dedt Moroz figurines.
Generally, figurines and dolls are not traditionally
associated or used with the particular festival of Christmas;
they are not ejusdem generis with 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
In regard to festive articles, we note that, in part, the
applicable standard is "traditionally associated or used with a
particular festival." It is our understanding that "traditional
use," as referred to in the EN's to 9505, means traditional use
in the United States at the time of importation. Similarly, in
the cases of Sanji Kobata et al. v. United States, 66 Cust. Ct.
341, C.D. 4213 (1971), W & J Sloane, Inc. v. United States, 76
Cust. Ct. 62, C.D. 4636 (1976), and J.E. Mamiye & Sons, Inc. v.
United States, 85 Cust. Ct. 92, C.D. 4878 (1980), the court
considered the use of various articles in the United States in
order to determine whether they were classifiable within certain
eo nomine provisions. Furthermore, we note that the language
included in Additional U.S. Note 1(a) indicates that a tariff
classification controlled by use is also determined in accordance
with the use of the article in the United States.
Accordingly, traditional uses, from other countries
regarding particular festivals, do not necessarily give rise to
articles that are traditionally used in the United States as
festive articles. Thus, regardless of the way such articles may
be recognized in their country of origin, they may not be
classifiable within heading 9505.
The fact that the Soda Pop figurine has a beard, moustache,
and fat belly, and wears an oversized coat with buckle, a cap,
and boots indicates that the article is identifiable upon
importation as Santa Claus. The Kris Kringle and Dedt Moroz
figurines, which do not possess most of these characteristics,
are distinguishable only as an old man, or perhaps as a friar or
cleric, and are not identifiable upon importation as Santa Claus.
We note that the latter figurines are identified as "original
designs depicting legendary Santas." Although the Santas
depicted may be readily recognizable as traditional in other
countries, they are not recognized as a substantial part of the
We also note that the Soda Pop figurine 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 Soda Pop figurine is classifiable, pursuant to
GRI 1, in 9505 as a festive article. See Headquarters Ruling
Letters 951422, issued November 25, 1992 and 952520, issued
October 22, 1992.
The Santa figurine is classifiable within subheading 9505.10
which provides for articles for Christmas festivities. At the
eight digit subheading level, the Santa figure is not
classifiable in subheadings 9505.10.10, 9505.10.15 and 9505.10.25
which cover Christmas ornaments of glass, wood and other,
respectively. The Santa figure does not meet our criteria for
Christmas ornaments. See HRL 951422, supra.
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 figurine is
composed of plastic, it is classifiable in subheading 9505.10.40.
Because the Kris Kringle and Dedt Moroz figurines are not
classifiable in 9505 as festive articles, they must be classified
elsewhere. Heading 3926 provides for other articles of plastics
or materials of headings 3901 to 3914. Since the plastic
figurines are ornamental, they are classifiable in subheading
The Soda Pop figurine remains classifiable in subheading
9505.10.4000, HTSUSA, as "Festive, carnival or other
entertainment articles,...Articles for Christmas festivities and
parts and accessories thereof: Other [than Christmas ornaments]:
Of plastics." The general column one rate of duty is 8.4 percent
The Kris Kringle and Dedt Moroz figurines are classifiable
in subheading 3926.40.00, HTSUSA, as "Other articles of plastics
and articles of other materials of headings 3901 to 3914:
Statuettes and other ornamental articles." The general column
one rate of duty is 5.3 percent ad valorem.
NYRL 857808 is modified accordingly.
John Durant, Director
Commercial Rulings Division