HQ 085189: Bavarian Christmas Ornaments

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                            HQ 085189

                        November 9, 1989

CLA-2  CO:R:C:G:  085189 DPS

CATEGORY:  Classification

TARIFF NO.:  9505.10.2500


Joel K. Simon, Esquire
Serko & Simon
One World Trade Center
Suite 3371
New York, N.Y.  10048

RE: Bavarian Christmas Ornaments

Dear Mr. Simon:

     Your letter of July 7, 1989, on behalf of Russ Berrie &
Company, Inc., to our New York office has been referred to this
office for reply concerning the tariff classification under the
Harmonized Tariff Schedule of the United States Annotated
(HTSUSA), of item 3431, Bavarian Christmas Ornaments.  This item
is comprised of three Christmas ornaments which depict a
soldier, a fairy and a Santa Claus.  Samples of each ornament
were submitted with your ruling request.  Their country of origin
was not specified.

FACTS:

     The subject merchandise consists of three stuffed figures
described as Bavarian Christmas ornaments.  The figure depicting
a soldier measures approximately six inches in height, is dressed
in ceremonial soldier costume and holds a miniature textile
Christmas tree in his right hand.  The figure is lightweight and
has a gold loop attached to the top of its hat which enables it
to be hung from a tree.

     The figure depicting a fairy measures approximately five
inches in height, is dressed in white tights with a net overlay
skirt and there is a gold circular band on her head depicting a
halo and a star in her hand depicting a wand.  The figure is
lightweight and has a gold loop attached to its head which
enables it to be hung from a tree.


     The third figure represents Santa Claus.  He measures
approximately seven inches in height and is clad in traditional
Santa garb.  Like the others, this figure is lightweight and has
a gold loop attached to the top of its hat enabling it to be hung
from a tree.

     You suggest that the subject items should be classified as
follows: that the Santa Claus and soldier are classifiable in
subheading 9502.10.2000, HTSUSA, which provides for stuffed dolls
representing only human beings; and that the fairy is
classifiable in subheading 9503.41.1000, HTSUSA, which provides
for stuffed toys representing animals or non-human creatures.

ISSUE:

     Whether the subject articles, described as Bavarian
Christmas Ornaments, are considered Christmas ornaments,
classifiable under subheading 9505.10.2500, HTSUSA, the provision
covering Christmas ornaments, not of wood or glass; or whether
the subject figures are classifiable as stuffed dolls, in
subheadings 9502.10.2000, HTSUSA, and/or 9503.41.1000, HTSUSA.

LAW & ANALYSIS:

          The General Rules for the Interpretation of the
Harmonized System (GRI's) govern classification under the
Harmonized Tariff Schedule.  According to GRI 1, the primary
consideration in determining whether merchandise should be
classified in a heading should be given to the language of the
heading and any relevant chapter or section notes, and, provided
such headings or notes do not otherwise require, according to the
remaining GRI's, taken in order.  The subheadings at issue in
this case are:

          (a) 9502.10.2000, HTSUSA, Dolls representing only
          human beings and parts and accessories thereof:
          Dolls, whether or not dressed:  Stuffed;

          (b) 9503.41.1000, HTSUSA, Toys representing
          animals or non-human creatures (for example,
          robots and monsters) and parts and accessories
          thereof:  Stuffed toys and parts and accessories
          thereof: Stuffed toys; and

          (c) 9505.10.2500, Festive, carnival or other
          entertainment articles, including magic tricks and
          practical joke articles; parts and accessories
          thereof:  Articles for Christmas festivities and
          parts and accessories thereof:  Christmas
          ornaments: Other: Other.


     The Explanatory Notes to the HTSUSA, which constitute the
official interpretation of the tariff at the international level,
provide further guidance in determining the scope of each
provision.  With regard to Heading 9505, HTSUSA, the provision
for festive articles, 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 an article by its shape,
design, ornamentation and appropriate use in connection with a
recognized festive holiday, is an article that falls under
Heading 9505, HTSUSA.  Here, the subject stuffed figures are
Christmas ornaments per se. To qualify as a Christmas ornament,
Customs requires that the following three criteria be met:
(1) that the item is advertised and sold as a Christmas tree
ornament; (2) that there is some method, generally a loop
attached to the top, to hang the item on a tree; and (3) that the
item is not too big or too heavy to be hung or attached to a
tree. The submitted samples clearly meet the above criteria.
They are designed, sold, and used as tree ornaments. Therefore,
pursuant to GRI 1, the three articles described as Bavarian
Christmas ornaments are classifiable under subheading
9505.10.2500, the provision for Christmas ornaments, made of
material other than glass or wood.  Christmas ornaments
consisting of human figures are a class of merchandise separate
and distinct from dolls.

     No information was provided as to whether the subject
ornaments are imported together as a set, or separately.
However, such information does not affect their classification,
as they are all considered Christmas ornaments, classifiable
under the provision for Christmas ornaments, subheading
9505.10.2500, HTSUSA.

HOLDING:

     Pursuant to GRI 1, the subject Bavarian Christmas ornaments
are properly classifiable under subheading 9505.10.2500, HTSUSA,
the provision for Christmas ornaments made of material other than
glass or wood.


                              Sincerely,



                              John Durant, Director
                              Commercial Rulings Division