CLA-2 CO:R:C:F 955802 GGD
Mr. Dan Meylor
Tower Group International, Inc.
Castelazo & Associates
5420 West 104th Street
Los Angeles, California 90045-6069
RE: Singing Santa; Festive Article
Dear Mr. Meylor:
This letter is in response to your inquiry of December 20,
1993, on behalf of your client, Caffco, International, concerning
the classification under the Harmonized Tariff Schedule of the
United States (HTSUS), of an item identified as a "Singing
Santa," imported from China. A sample was submitted with your
inquiry.
FACTS:
The sample figure, identified by item no. XN65209, is a
decorated head and neck, measuring approximately seven inches in
height, comprised of molded plastic, with painted features, a
furry white beard and moustache, and spectacles. Glued to the
head is a red, cone-shaped, felt hat, trimmed with white
imitation fur, two green leaves, and two red berries. There is a
metal ring on the hat for suspending the item. Within the hat is
a battery-powered sound device with a sensor. When the switch is
turned on, changes in light activate the device, which "sings" a
portion of the song "We Wish You a Merry Christmas."
ISSUE:
Whether the decorative item is classified in subheading
9505.10.50, HTSUS, as a festive article.
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LAW AND ANALYSIS:
Classification under the HTSUS is made in accordance with
the General Rules of Interpretation (GRIs). The systematic
detail of the harmonized system is such that virtually all 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 solely on the basis of GRI 1, and if the headings and
legal notes do not otherwise require, the remaining GRIs may then
be applied. The Explanatory Notes (ENs) to the Harmonized
Commodity Description and Coding System, which represent the
official interpretation of the tariff at the international level,
facilitate classification under the HTSUS by offering guidance in
understanding the scope of the headings and GRIs.
Heading 9505, HTSUS, provides for, among other items,
festive, carnival, and other entertainment articles. The EN to
9505 indicates 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,
HTSUS, 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);
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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 item is not dispositive of its classification and,
consequently, does not transform an item into a festive article.
The "Singing Santa" is made of non-durable material.
Customs considers articles such as this to be made of non-durable
material since it is not designed for sustained wear and tear,
and is not purchased for its extreme worth or value (as would be
a decorative, yet costly piece of art or crystal). Further, the
primary function of the item is decorative, as opposed to
utilitarian.
Although in general, figurines and dolls are not
traditionally associated or used with a particular festival
(i.e., they are not of the same type of articles cited in the ENs
to heading 9505 as examples of traditional festive articles),
Santa Claus is a unique form that traditionally has been
associated, particularly and exclusively, with Christmas. Only
three dimensional forms of Santa Claus, identifiable as such
upon importation, are classifiable within 9505 as festive
articles. Although lacking a torso and extremities, the "Singing
Santa" is in three dimensional form. It is our determination
that the article would be identified as the form of Santa Claus
upon importation, and that it meets the criteria for
classification as a festive article.
HOLDING:
The "Singing Santa," identified by item no. XN65209, is
classified in subheading 9505.10.50, HTSUS, the provision for
"Festive, carnival or other entertainment articles...parts and
accessories thereof: 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