HQ 085518: 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 085518

                        November 24, 1989

CLA-2  CO:R:C:G:  085518 DPS

CATEGORY:  Classification

TARIFF NO.: 9505.10.2500


Ms. Debbie Zimmerman
Midwest Importers of Cannon Falls, Inc.
P.O. Box 20
Highway 52 South
Cannon Falls, MN 55009-0020

RE: Treetop Santa Figure

Dear Ms. Zimmerman:

     Your letter of July 26, 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 item No. 0065-4, which is
described as "Santa with Toy Filled Bag, Tree Top," in your 1989
Christmas catalog, part 1, at p. 114.  A sample of the article
was submitted with your request.

FACTS:

     The subject merchandise, which is manufactured in Taiwan, is
described as a treetop Santa Claus figure with a toy filled bag
slung over its shoulder.  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 hair made of textile string.  The
body of the subject figure is made of a funnel shaped piece of
plastic, which is covered with a thin layer of soft foam.  In the
left hand of the figure is a long wooden scepter.  The figure is
clothed in a long green one piece outfit belted with gold colored
twine.  Over this is a long red coat trimmed with white simulated
fur.  On his head is a traditional Santa Claus hat with a small
bell at the tip.  Carried over the right shoulder is a sack
decorated with gold twine and small hanging wooden animals.
The item is designed to be placed over the top of a tree, with
the treetop branches fitting into the open plastic cone, which
makes up the figure's body.


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 a "Santa with Toy Filled Bag,
Treetop," is classifiable under subheading 9505.10.2500, HTSUSA,
the provision for Christmas ornaments of materials other than
glass or wood.


                              Sincerely,



                              John Durant, Director
                              Commercial Rulings Division