CLA-2 CO:R:C:F 954760 LPF
Joel K. Simon, Esq.
Serko & Simon
One World Trade Center
Suite 3371
New York, NY 10048
RE: Classification of Santa Claus figures in 9505, HTSUSA;
Festive articles; HRLs 951459, 953693, 954253, 954735,
951422, 952520; NYRL 856393
Dear Mr. Simon:
This is in response to your letter dated August 3, 1993,
submitted on behalf of Russ Berrie and Company, Inc., requesting
the proper classification of Santa Claus figures, under the
Harmonized Tariff Schedule of the United States Annotated (HTSUSA).
You submitted samples with your request for a binding ruling.
FACTS:
The merchandise at issue, imported from Thailand or Taiwan,
consists of five figures which you believe resemble Santa Claus.
Item #2628 is an 11 inch tall fabric Santa figure, packaged
in a box with the title, "The Legend of St. Nicholas." The figure
depicts Santa Claus in a manner which would be considered
traditional in the U.S. The figure wears an oversized red coat
with white trim at the bottom, red pants with black bands and
designs around the lower sleeves and pants legs, a red hat with a
black band with designs, grey boots, and green gloves. It has a
long, fully grown beard and a moustache and carries a green bag
tied around its waist with two wrapped boxes, a trumpet, and some
fruit.
Item #2629 is an ll inch tall fabric Santa figure, packaged
in a box with the title, "The Legend of St. Nicholas." Although
the form of the figure is similar to Item #2628, Santa Claus is
depicted in a manner reminiscent of the 19th century. The figure
wears a long green coat with white trim at the bottom, cuffs, and
sleeves, a green hat, green gloves, a multicolored scarf, and brown
boots. It has a long, fully grown beard and moustache and carries
a red bag with some fruit and a present.
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Item #14101 is a 4-1/2 inch tall plastic Santa figure,
packaged in a box with the title, "The Legend of St. Nicholas."
The figure, which consists of the upper torso of Santa Claus,
depicts Santa Claus in a manner considered traditional in the U.S.
(e.g., oversized red coat with white trim, red hat, long, fully
grown beard and moustache, etc.). The figure is holding a wreath
and small bell.
Item #14097 is a 4-1/2 inch tall plastic Santa figure,
packaged in a box with the title, "The Legend of St. Nicholas."
The figure, which consists of the upper torso of Santa Claus is
supposed to represent a Russian Santa Claus as is evidenced by the
label on the front of the figure: "Russia." However, we note that
the figure depicts Santa Claus in a manner similar to that which
would be considered traditional in the U.S. (e.g., oversized red
coat with white trim, long, fully grown beard and moustache, etc.).
The figure wears a beige hat as well as glasses and holds a box and
bells.
Item #2955 is an 11-1/2 inch tall polyester fiber Santa
figure. It depicts Santa in a manner considered traditional in
the U.S. (e.g., red coat and pants, long, fully grown beard and
moustache, and red hat).
ISSUE:
Whether the Santa figures are classifiable in heading 9505 as
festive articles, 3926 as other articles of plastics, or 9502 as
dolls.
LAW AND ANALYSIS:
The General Rules of Interpretation (GRIs) taken in their
appropriate order provide a framework for classification of
merchandise under the HTSUS. 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 (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 provides for, inter alia, festive, carnival and
other entertainment articles. The ENs 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:
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(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).
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 figures are made of non-durable material. Customs
will consider articles, such as the Santa 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 figures serve no useful
function besides their role as decoration.
Finally, when examining the Santa figures, as a whole, it is
evident that the articles are traditionally associated or used with
the particular festival of Christmas.
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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 ENs 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 articles.
You submit that, "the present day image of Santa Claus
accepted by Customs can be more ascribed to an early twentieth
century Coca Cola Company advertising campaign than to any other
source. To hold that this is the only acceptable image of Santa
that qualifies as a festive article is disrespectful to, and
irreverent of, the many cultures that now make up the modern day
mosaic that is the United States." In this regard, we stress that
in Headquarters Ruling Letter 951459, issued March 17, 1993, we
explained that:
[i]n 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 ENs 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.
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A line of Customs decisions has delineated which figures
depicting Santa are identifiable as Santa at the time of
importation and thus qualify as festive articles, as opposed to
those that are primarily distinguishable as old men or clerics and
instead, in the U.S., may be more akin to folk art. Customs does
not recognize the latter types of figures to be traditionally
associated or used, in the U.S., particularly with Christmas. The
fact that figures depicting Santa have a beard, moustache, and fat
belly, and wear an oversized coat with buckle, a cap and boots, and
hold a sack of gifts indicates that such articles are identifiable
upon importation, into the U.S., as Santa Claus.
We note from your submission that in the U.S. Santas of the
1930-1960 period took on a rotund profile, reflecting the efforts
of the great American cartoonist Thomas Nast, who as early as 1879
was depicting this form of Santa in Harper's Weekly. W. Ketchum,
Jr., Holiday Ornaments and Antiques. However, emaciated figures
clothed in a variety of colors (e.g., white, yellow, brown, pink,
green, purple, or black) reflect the 19th century form of Santa in
the U.S. Ketchum, supra.
Accordingly, Customs has classified thin figures, identifiable
as Santa Claus upon importation, as festive articles (HRL 953693,
issued July 27, 1993 and NYRL 856393, issued October 17, 1990).
It also is Customs position that figures depicting Santa wearing
colors other than red may be classified as festive articles as long
as they are identifiable as Santa Claus upon importation (i.e.,
traditionally associated or used in the U.S. with Christmas).
Customs still maintains that figures which do not possess most of
the characteristics traditionally associated with Santa Claus in
the U.S., and are distinguishable only as old men, or perhaps as
friars or clerics, are not identifiable upon importation as Santa
Claus. Although these latter types may be readily recognizable as
traditional in other countries, they are not recognized as a
substantial part of the U.S. tradition.
We note that the subject figures 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). As the figures consisting
solely of the upper torso of Santa Claus are physical
manifestations of the form of Santa Claus in and of themselves,
they are sufficiently three dimensional to warrant classification
within heading 9505. See HRLs 954253, issued August 16, 1993 and
HRL 954735, issued August 17, 1993. Because our concern is with
classification based on motif, it is our position that the subject
articles are distinguishable from articles such as a decorative
plate or decorative packaging (i.e., a box, container, or wrapping
paper) which may include a Santa Claus sticker, drawing, or design.
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In this latter situation the articles are not physical
manifestations of the form of Santa Claus in and of themselves,
but instead are articles which include a Santa Claus motif.
The subject articles possess most of the characteristics
traditionally associated with Santa Claus and are identifiable upon
importation as Santa Claus. For these reasons, the subject Santa
figures are classifiable, pursuant to GRI 1, in 9505 as festive
articles. See HRLs 951422, issued November 25, 1992 and 952520,
issued October 22, 1992.
The Santa figures are classifiable within subheading 9505.10
which provides for articles for Christmas festivities. At the
eight digit subheading level, the Santa figures are 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 figures do 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 Items #14101 and #14097 are
composed of plastic, while Items #2628, #2629, and #2955 are
composed of other materials, they are classifiable in subheadings
9505.10.40 and 9505.10.50, respectively.
HOLDING:
The Santa Claus figures, Items #14101 and #14097, are
classifiable in subheading 9505.10.4020, HTSUSA, as "Festive,
carnival or other entertainment articles,...Articles for Christmas
festivities and parts and accessories thereof: Other [than
Christmas ornaments]: Of plastics, Other." The general column one
rate of duty is 8.4 percent ad valorem.
The Santa Claus figures, Items #2628, #2629, and #2955 are
classifiable in subheading 9505.10.5020, HTSUSA, as "Festive,
carnival or other entertainment articles,...Articles for Christmas
festivities and parts and accessories thereof: Other [than
Christmas ornaments]: Other, Other." The general column one rate
of duty is 5.8 percent ad valorem.
Sincerely,
John Durant, Director
Commercial Rulings Division