CLA-2 CO:R:C:F 954253 LPF
Mr. Roger Liu
President
L'Art de Chine
411 Allan Street
Daly City, CA 94014
RE: Classification of decorative articles depicting Santa Claus;
Heading 9505 as festive, carnival or other entertainment
articles; Not heading 6304 as other furnishing articles.
Dear Mr. Liu:
This is in response to your letter of April 23, 1993,
requesting the classification of decorative articles depicting
Santa Claus under the Harmonized Tariff Schedule of the United
States Annotated (HTSUSA). You submitted samples with your request
for a binding ruling.
FACTS:
The decorative articles, imported from China, are constructed
on a cardboard frame with a polyester or sponge filler and are
covered in a 100% woven cotton fabric. The decorative portion also
is 100% cotton fabric. The articles are designed to be hung from
a wall, window, etc. within the home and are identifiable as
follows: Santa and Bear (Style #11-548), Santa Noel (Style #11-
549), Jolly Santa (Style #11-563), and The Kiss (Style #11-902).
ISSUE:
Whether the decorative articles depicting Santa Claus are
classifiable in heading 9505 as festive, carnival or other
entertainment articles or in heading 6304 as other furnishing
articles.
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. In the event that the goods cannot be classified
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solely on the basis of GRI 1, and if the headings and legal notes
do not otherwise require, the remaining GRI's may then be applied.
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 Claus figures are made of non-durable
material. Customs will consider articles, such as the Santa Claus
figures, 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 Santa Claus figures serve no
useful function besides their role as decoration.
Finally, when examining the Santa Claus figures, as a whole,
it is evident that the articles are traditionally associated or
used with the particular festival of Christmas. Santa Claus is a
unique form that traditionally has been associated, particularly
and exclusively, with Christmas. Accordingly, these figures are
ejusdem generis with those articles cited in the EN's to 9505, as
exemplars of traditional, festive articles. 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.
The fact that the subject figures, with the exception of "The
Kiss" (Style #11-902) have a beard, moustache and fat belly, wear
boots, an oversized fur-lined suit with a belt and buckle, and a
cap, indicates that the articles are identifiable upon importation
as Santa Claus. Also, these articles qualify as three dimensional,
because they are not designed or effective primarily as a flat or
surface composition, but rather are specifically designed to give
an illusion of depth or varying distances. See Webster's Third New
International Dictionary 2474 (1971). Although these figures can
be hung from a wall, window, etc., because they contain a polyester
or sponge filler and are physical manifestations of the form of
Santa Claus in and of themselves, they are sufficiently three
dimensional to warrant classification within heading 9505. "The
Kiss" (Style #11-902) which comprises a face kissing under
mistletoe, also is identifiable as the form of Santa Claus.
The terms of the heading and the applicable EN's indicate that
the Santa Claus figures are classifiable, pursuant to GRI 1, in
9505 as festive articles. See HRL 952520, issued October 22, 1992
and 952834, issued January 6, 1993.
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The Santa figures are 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, the Santa figures do not meet the criteria for
a Christmas ornament. See HRL's 952520 and 952834, 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 figures are
composed of materials other than plastics, they are classifiable
in subheading 9505.10.50. Because the articles are appropriately
provided for in subheading 9505.10.50, they are not classified
within heading 6304 as other furnishing articles.
HOLDING:
The Santa & Bear (Style #11-548), Santa Noel (Style #11-549),
Jolly Santa (Style #11-563), and The Kiss (Style #11-902) are
classified in subheading 9505.10.5000, HTSUSA, as "Festive,
carnival or other entertainment articles,...: Articles for
Christmas festivities and parts and accessories thereof: Other:
Other." The applicable rate of duty is 5.8 percent ad valorem.
Sincerely,
John Durant, Director
Commercial Rulings Division