HQ 951393: Modification of NYRL 859325; Classification of snowman puppet; Heading 9503, HTSUSA, toy; Not 9505, festive article; HRL's 952520, 952249

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 951393

                        January 11, 1993

CLA-2 CO:R:C:F 951393 LPF

CATEGORY: Classification

TARIFF NO.: 9503.49.0020

Ms. Anne Di Stefano
Wonder Bar Products, Inc.
1624 Stillwell Avenue
Bronx, NY 10461

RE:  Modification of NYRL 859325; Classification of snowman
     puppet; Heading 9503, HTSUSA, toy; Not 9505, festive
     article; HRL's 952520, 952249

Dear Ms. Di Stefano:

    In New York Ruling Letter (NYRL) 859325, issued January 31,
1991, a Santa Claus and snowman puppet were classified in
subheading 9505.10.50, Harmonized Tariff Schedule of the United
States Annotated (HTSUSA), as "Festive, carnival or other
entertainment articles,...Articles for Christmas festivities and
parts and accessories thereof: Other [than Christmas ornaments]:
Other."  We have reviewed that ruling and have found it to be
partially in error.  The Santa Claus puppet was properly
classified.  The correct classification of the snowman puppet
follows.

FACTS:

    The articles at issue, imported from China, are two textile
puppets, one depicting Santa Claus and the other, a snowman. 
Each has a polyester, knit, napped fabric body with an oval
shaped, see through, plastic insert over the stomach area,
designed to display candy inserted in the torso of the puppets. 
The articles' heads, hands and feet are stuffed, and each puppet
has a braided loop fastened in the seams adjacent to the ears. 
The openings in the seams at the shoulders and necks provide for
puppet operation.  The Santa Claus puppet which has a beard and
moustache and wears an oversized, fur-lined coat with buckle, is
identifiable as Santa upon importation. 

ISSUE:

    Whether the snowman figure is classifiable in heading 9503 as
an other toy or rather in heading 9505 as a festive article.






                               -2-

LAW AND ANALYSIS:

    The General Rules of Interpretation (GRI's) taken in their
appropriate order provide a framework for classification of
merchandise under the HTSUSA.  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 (EN's) to the Harmonized
Commodity Description and Coding System, which represent the
official interpretation of the tariff at the international level,
facilitate classification under the HTSUSA by offering guidance
in understanding the scope of the headings and GRI's.

    Heading 9505 provides for, inter alia, festive, carnival and
other entertainment articles.  The EN's 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:

               (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-

     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.

     When examining the snowman puppet, as a whole, it is evident
that the article is not traditionally associated or used with the
particular festival of Christmas.  Generally, figurines, dolls
and other articles, such as puppets, are not traditionally
associated or used with the particular festival of Christmas;
they are not ejusdem generis with those articles cited in the
EN's to 9505, as exemplars of traditional, festive articles. 
Although our office has ruled that Santa Claus is a unique form
that traditionally has been associated, particularly and
exclusively, with Christmas, this is not the case with snowmen. 
Snowmen, although associated with the winter season, in general,
are not particularly related to Christmas since they often appear
in movies, cartoons, etc. of no significance to Christmas.  See
Headquarters Ruling Letters 952520, issued October 22, 1990, and
952249, issued October 30, 1992, classifying three dimensional
forms of Santa Claus as festive articles, but classifying other
articles not particularly associated with a festival as other
than festive articles.  The article must be classified elsewhere.

     Heading 9503, HTSUSA, provides for, inter alia, other toys. 
The EN's to Chapter 95, HTSUSA, indicate that "this chapter
covers toys of all kinds whether designed for the amusement of
children or adults."  It is Customs' position that the amusement
requirement means that toys should be designed and used
principally for amusement.  See Additional U.S. Rule of
Interpretation 1(a), HTSUSA.  Customs defines principal use as
that use which exceeds each other single use of the article.  In
this case, since the article will be principally used as a toy,
it is classifiable in 9503.  Because, from the information
provided, it appears the puppet is not stuffed, it is
classifiable in subheading 9503.49.0020.

HOLDING:

     The snowman puppet is classifiable in subheading
9503.49.0020, HTSUSA, as "Other toys;...: Toys representing
animals or non-human creatures (for example, robots and monsters)
and parts and accessories thereof: Other, Toys not having a
spring mechanism: Other."  The general column one rate of duty is
6.8 percent ad valorem.



                               -4-

     This notice should be considered a modification of NYRL
859325 pursuant to 19 CFR 177.9(d)(1).  It is not to be applied
retroactively to NYRL 859325 (19 CFR 177.9(d)(2)) and will not,
therefore, affect past transactions for the importation of your
merchandise under that ruling.  However, for the purposes of
future transactions in merchandise of this type, NYRL 859325 will
not be valid precedent.  We recognize that pending transactions
may be adversely affected by this modification, in that current
contracts for importations arriving at a port subsequent to this
decision will be classified pursuant to it.  If such a situation
arises, you may notify this office and apply for relief from the
binding effects of this decision as may be warranted by the
circumstances.

                         
                                   Sincerely,


                                        
                                   John Durant, Director
                                   Commercial Rulings Division