HQ 085516: Treetop Santa Figure

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 085516

                        December 5, 1989

CLA-2  CO:R:C:G:  085516 DPS

CATEGORY:  Classification

TARIFF NO.:  9505.10.2500

Ms. Madeleine Salgo
Kurt S. Adler, Inc.
1107 Broadway
New York, N.Y.  10010

RE: Treetop Santa Figure

Dear Ms. Salgo:

     Your letter of August 8, 1989, 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 your item W-827, which you describe
as a Santa Tree Top Ornament, and which is described in your
catalog as "Plaid Santa Treetop."  A sample of the merchandise
was submitted with your ruling request.

FACTS:

     The subject merchandise, which is manufactured in Taiwan, is
described as a treetop Santa Claus figure.  The item is
approximately 12 inches tall.  The figure's head and hands are
made of porcelain.  The face has detailed features and is
ornamented with a long white beard and white eyebrows made of
textile string.  The body of the figure is made of a plastic cone
base covered with a thin layer of soft foam which is then covered
with textile material.  The article is clothed in a long red and
green plaid one piece outfit and a long red coat and hood trimmed
with simulated white fur.  Carried over the right shoulder is a
stuffed red and green plaid sack decorated with holly leaves,
pine cones and berries.  According to the inquirer, the item is
designed to be placed over the top of a tree.

ISSUE:

     Whether the subject article, described as a treetop Santa
is considered to be a Christmas ornament, classifiable under
subheading 9505.10.2500, HTSUSA, the provision for Christmas
ornaments, not of wood or glass.


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 subheading at issue in this case is:

               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, which by its shape,
design and ornamentation is appropriately used in connection with
a recognized festive holiday, is an article that falls under
Heading 9505, HTSUSA.  To qualify as a Christmas ornament,
Customs requires that the following three criteria be met:
(1) that the item is marketed and sold as a Christmas tree
ornament; (2) that there is some method, generally a loop
attached to the top, to secure or 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 sample clearly meets the above
criteria.  It is designed, marketed, sold and used as a tree
ornament. The subject article represents a character who is
traditionally associated with Christmas and Christmas trees.
It falls into a class of merchandise which, for tariff purposes,
is separate and distinct from dolls.  Therefore, pursuant to
GRI 1, the subject treetop Santa is classifiable under
subheading 9505.10.2500, the provision for Christmas ornaments,
made of materials other than glass or wood.

HOLDING:

     In accordance with the rationale set forth above, the
subject merchandise, described as "Plaid Santa Treetop," is
classifiable under subheading 9505.10.2500, HTSUSA, the provision
for Christmas ornaments of materials other than glass or wood.
Items classified under this subheading are subject to a duty rate
of 5 percent ad valorem.



                              Sincerely,



                              John Durant, Director
                              Commercial Rulings Division