HQ 953336: Decision on application for further review of Protest No. 2904-93-100016, filed January 5, 1993, concerning classification of inflatable Santa Claus figure; Heading 9505, festive, carnival or other entertainment article; Not 9502, doll; HRL's 951533, 952889, 952263, 952520, 952834

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 953336

                          June 14, 1993

CLA-2 CO:R:C:F 953336 LPF

CATEGORY: Classification

TARIFF NO.: 9505.10.40

District Director
U.S. Customs Service
511 N.W. Broadway Federal Bldg.
Portland, OR 97209

RE: Decision on application for further review of Protest No.
    2904-93-100016, filed January 5, 1993, concerning
    classification of inflatable Santa Claus figure; Heading
    9505, festive, carnival or other entertainment article; Not
    9502, doll; HRL's 951533, 952889, 952263, 952520, 952834

Dear Sir:

    This is a decision on a protest filed January 5, 1993,
against your decision in the classification of certain
merchandise liquidated on October 9, 1992.

FACTS:

    The article at issue, imported from China, is a three
dimensional inflatable figure depicting Santa Claus, item No.
7056.  It has a beard and moustache and is wearing a red suit
with a belt and buckle, a red cap, and boots.  The figure is
holding a candy cane.

    The protestant entered the article under subheading
9502.10.40, Harmonized Tariff Schedule of the United States
Annotated (HTSUSA), as "Dolls representing only human beings and
parts and accessories thereof: Dolls, whether or not dressed:
Other: Not over 33 cm in height," at a duty rate of 12 percent ad
valorem. 

    You maintain that the article is classifiable in 9502.10.40.
The protestant claims that the article is properly classified in
9505.10.40, as "Festive, carnival or other entertainment
articles,...: Articles for Christmas festivities and parts and
accessories thereof: Other: Of plastics," at a duty rate of 8.4
percent ad valorem.

ISSUE:
    
    Whether the inflatable Santa Claus figure is classifiable in
heading 9502 as a doll or in heading 9505 as a festive article.


                               -2-

LAW AND ANALYSIS:

    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.   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.






                               -3-
     
     First, the Santa figure is made of non-durable material. 
Customs will consider an article, such as the Santa figure, to be
made of non-durable material since it is not designed for
sustained wear and tear, nor is it purchased because of its
extreme worth or value (as would be the case with a decorative,
yet costly, piece of art or crystal).  In addition, the article's
primary function is decorative, as opposed to, utilitarian.

     Finally, when examining the Santa figure, as a whole, it is
evident that the article is 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 ejusdem generis
with those articles cited in the EN's to 9505, 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 9505 as festive articles.

     The fact that the instant figure has a beard, moustache and
fat belly, wears an oversized suit with a belt and buckle, and a
cap, indicates that the article is identifiable upon importation
as Santa Claus.  Also, the article is three dimensional, because
it is not designed or effective primarily as a flat or surface
composition, but rather is specifically designed to give an
illusion of depth or varying distances.  See Webster's Third New
International Dictionary 2474 (1971).  

     Similarly, three dimensional figures representing humans and
animals or non-human creatures have been classified,
respectively, within 9502 as dolls and 9503 as toys.  The fact
that such figures are relatively flat at the time of importation
but subsequently are inflated does not bar their classification
as dolls, animals, or creatures.  Likewise, the inflatable Santa
Claus qualifies as a three dimensional figure.  See Headquarters
Ruling Letter (HRL) 951533, issued June 17, 1992, indicating that
Customs has classified figures as toy animals or creatures which 
are full or reasonably full figured depictions of the animals or
creatures which they seek to represent and which are an
articulation of the character in three dimensions.  See also HRL
952889, issued March 17, 1993, where an inflatable bat animal was
classified as a toy animal.

     In HRL 952263, issued October 30, 1992, an angel was
classified as a doll because the only non-human characteristic of
the figure was the set of unobtrusive wings, which were not
attached at the time of importation.  The application of that 


                               -4-

test here, (e.g., that the article is not inflated at the time of
importation) does not preclude an inflatable article such as the
Santa figure from qualifying as three dimensional.  An
"inflatable" article is designed especially to be inflated in its
three dimensional form.  It is not meant to function in any other
condition.  The distinction raised in HRL 952263 merely addresses
what may be considered accoutrements or costumes as opposed to
appendages or bodily features for tariff determinations of human
versus non-human creatures.    

     The terms of the heading and the applicable EN's indicate
that the Santa Claus figure is classifiable, pursuant to GRI 1,
in 9505 as a festive article.  See HRL 952520, issued October 22,
1992 and 952834, issued January 6, 1993.

     The Santa figure is classifiable within subheading 9505.10
which provides for articles for Christmas festivities.  As for
the proper classification of the Santa figure at the eight digit
subheading level, the Santa figure does not meet the criteria for
a Christmas ornament.  See HRL's 952520 and 952834, supra. 

     Subheading 9505.10.40, covers other Christmas articles of
plastics, while subheading 9505.10.50, covers other Christmas
articles made of other materials.  As the Santa figure is
composed of plastic, it is classifiable in subheading 9505.10.40.

HOLDING:

     The inflatable Santa Claus figure is classifiable in
subheading 9505.10.4000, HTSUSA, as "Festive, carnival or other
entertainment articles,...: Articles for Christmas festivities
and parts and accessories thereof: Other [than Christmas
ornaments]: Of plastics."  The applicable rate of duty is 8.4
percent ad valorem.

     Since reclassification of the merchandise as indicated above
will result in a lower rate of duty than claimed at the time of
entry, you are instructed to allow the protest in full.  A copy
of this decision with the Form 19 should be sent to the
protestant.
                              
                                   Sincerely,


                                        
                                   John Durant, Director
                                   Commercial Rulings Division