HQ 952555: Protest No. 2704-92-100861; Porcelain Old World Santa Claus; subheadings 6914.10.00, 6913.10.50; headings 6913, 9505; ENs 69.13, 95.05; HQs 952520, 951422, 951394

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 952555

                        February 17, 1993



CLA-2 CO:R:C:M 952555 EJD

CATEGORY:   Classification

TARIFF NO:  9505.10.50

Mr. John H. Heinrich
District Director 
U.S. Customs Service
300 South Ferry Street
Terminal Island Room 2017
San Pedro, California  90731

RE:  Protest No. 2704-92-100861; Porcelain Old World Santa Claus;
     subheadings 6914.10.00, 6913.10.50; headings 6913, 9505; 
     ENs 69.13, 95.05; HQs 952520, 951422, 951394

Dear Mr. Heinrich:

     This is in response to the Application for Further Review of
Protest No. 2704-92-100861, dated February 21, 1992, which
pertains to the tariff classification of four assorted porcelain
decorated figurines of Old World Santa Claus ("Santa") under the
Harmonized Tariff Schedule of the United States (HTSUS).  A
picture of the figurines was submitted for our examination.

FACTS:

     The merchandise is four assorted porcelain decorated
figurines of Old World Santa Claus from Taiwan.  All four Santa
figurines are sold as a set for approximately $14.60.  

     Each Santa is approximately 7 1/4 inches tall and has a
ceramic face, white beard and moustache, hands and lower trunk. 
Each Santa is wearing a red cap with white trim around the front. 
Each Santa is holding a small pine tree.  Three of the Santa
figurines are wearing a full length red textile coat with white
trim around the collar, hemline, front and sleeves with a black
buckle belt or gold belt.  One Santa is wearing an oversized coat
with a black buckle, red pants and black boots.  Three of the
Santa figurines are holding bags of presents.  The Santa with the
gold belt is using a walking cane.  

     The protestant, Costco Wholesale Corporation, contends that
the correct classification of these porcelain Santa figurines is
as festive articles under subheading 9505.10.50, HTSUS.  

     The merchandise was classified upon entry under subheading
6914.10.00, HTSUS, which provides for other ceramic articles.  
It was finally liquidated under a more specific provision,
subheading 6913.10.50, HTSUS, which provides for statuettes and
other ornamental ceramic articles. 

ISSUE:

     Whether the porcelain Old World Santa Claus figurines are
classifiable in heading 6913, HTSUS, as statuettes and other
ornamental ceramic articles or in heading 9505, HTSUS, as festive
articles?

LAW AND ANALYSIS:

     The classification of goods under the HTSUS is governed by
the General Rules of Interpretation (GRIs), taken in order.  GRI
1 provides that classification shall be determined according to
the terms of the headings and any relative section or chapter
notes.  

     The two competing headings for these porcelain Santa
figurines are the following:

     Heading 6913, HTSUS, provides for "[s]tatuettes and other
ornamental ceramic articles . . . [o]f porcelain or china . . .
[o]ther . . . [o]ther."
     
     Heading 9505, HTSUS, provides for "[f]estive, carnival or
other entertainment articles, including magic tricks and
practical joke articles; parts and accessories thereof."

     The Explanatory Notes (ENs) are the official interpretation
of the Harmonized Commodity Description and Coding System (HCDCS)
at the international level.  They provide a commentary on the
scope of each heading of the Harmonized System and are thus
useful in ascertaining the classification of merchandise under
the System.  The Explanatory Notes, although not dispositive, are
to be looked to for the interpretation of the HTSUS.  54 Fed.
Reg. 35127, 35128 (Aug. 23, 1989).

     EN 69.13 states, in pertinent, at page 923, that:

                             *  *  *

          The heading does not include articles falling in more
     specific headings of the Nomenclature even if they are
     suited by reason of their nature or finish for decorative
     use[.]

                             *  *  *
          The heading covers:  

     (A)  Articles which have no utility value but are wholly
          ornamental, and articles whose only usefulness is to
          support or contain other decorative articles or to add
          to their decorative effect, e.g.:

          (1)  Statues, statuettes, busts, haut or bas reliefs,
               and other figures for interior or exterior
               decoration; ornaments (including those forming
               parts of clock sets) for mantelpieces, shelves,
               etc., (animals, symbolic or allegorical figures,
               etc.) . . . .

     EN 95.05 reads, in pertinent part, as follows:

          This 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.

                             *  *  *

HCDCS, p. 1590.

     The subject Santa figurines are not classifiable under
heading 6913, HTSUS.  In general, merchandise is classifiable in
heading 9505, HTSUS, 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 figurines are made of non-durable material. 
Customs will consider articles, such as the Santa figurines, 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 figurines serve no
useful function besides their role as decoration.

     Finally, when examining the Santa figurines, as a whole, it
is evident that the figurines are traditionally associated or
used with the particular festival of Christmas.  Generally,
figurines and dolls are not traditionally associated or used with
the particular festival of Christmas; they are not akin with
those articles cited in the ENs to heading 9505, HTSUS, 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 heading 9505, HTSUS, as
festive articles.  See Headquarters Ruling Letter (HQ) 952520,
dated October 22, 1992, where an Old World Santa figurine was
classified as a festive article.  See also HQ 951422, dated
November 25, 1992, and HQ 951394, dated December 2, 1992. 

     The fact that the subject figurines have beards, moustaches
and fat bellies, wear oversized coats with belt, caps and boots,
and carry a sack of gifts, indicates that the subject figurines
are identifiable upon importation as Santa Claus.  Also, the
articles are 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).  For these reasons, the subject Santa figurines are
classifiable, pursuant to GRI 1, in heading 9505, HTSUS, as a
festive article.

     The Santa figurines are classifiable within subheading
9505.10, HTSUS, which provides for articles for Christmas
festivities.  As for the proper classification of the Santa
figurines at the six digit subheading level, subheadings
9505.10.10, 9505.10.15 and 9505.10.25, HTSUS, cover Christmas
ornaments of glass, wood and other, respectively.  To qualify as
a Christmas ornament, Customs looks to the following three
criteria:

          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 Santa figurines do not meet these criteria. 
Consequently, they are not classifiable as Christmas ornaments.

     Subheading 9505.10.50, HTSUS, covers other Christmas
articles made of other materials.  As the Santa figurines are not
composed of plastic, they are classifiable in subheading
9505.10.50, HTSUS.

HOLDING:

     The Old World Santa Claus figurines are classifiable in
subheading 9505.10.50, HTSUS, as "[f]estive, carnival or other
entertainment articles...[a]rticles for Christmas festivities and
parts and accessories thereof...[o]ther [than Christmas
ornaments]...[o]ther," with a rate of duty of 5.8 percent ad
valorem.

     The protest should be granted in full.  A copy of this
decision should be attached to the Customs Form 19 and provided
to the protestant as part of the notice of action on the protest. 

                                   Sincerely,




                                   John Durant, Director