HQ 953427: Red Santa Candleholder Smoker, Santa with Sack Nutcracker, and Wood Nested Santa; Festive Articles

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 953427

                          June 4, 1993


CLA-2  CO:R:C:F  953427  GGD

CATEGORY:  Classification

TARIFF NO.:  9505.10.5000

Ms. Rosalie Althoff
P.O. Box 20, Highway 52 South
Cannon Falls, Minnesota 55009-0020

RE:  Red Santa Candleholder Smoker, Santa with Sack Nutcracker,
     and Wood Nested Santa; Festive Articles

Dear Ms. Althoff:

     This letter is in response to your inquiry of January 4,
1993, concerning the classification under the Harmonized Tariff
Schedule of the United States (HTSUSA), of the three separate
items identified above, which will be imported from China and
Germany by Midwest Importers of Cannon Falls, Inc.  A sample of
each item was submitted with your inquiry.  

FACTS:

     The sample figures, all of which are comprised essentially
of wood, are identified by three separate item numbers.  Item no.
02703-5 consists of a Santa figure with a white (wooden) beard, a
red robe, and a (wooden) sack of gifts.  The figure, which
measures approximately 7 inches high, holds a long-handled
smoker's pipe in one hand, and a small, upturned, brass-colored
bowl (into which a small candle may be inserted) in the other.  

     Item no. 07102-1 consists of a Santa figure with colors and
features similar to those of item 02703-5, but with a beard and
hair comprised of animal fur, and white textile fabrics on top of
and bordering the red (wooden) hat.  The figure measures
approximately 10 inches in height, and carries a (wooden) bell
and burlap sack, from which protrude small gifts and a bundle of
sticks. 
                               -2-

     Item no. 07047-5 consists of 5 pieces, which are graduated
sizes of cone-shapes painted as gift-bearing Santas, with bases
or "nest" portions into and/or onto which the Santa figures are
set.  The three "nested Santas," range in height from
approximately 1-1/2 inches (without base) to 5 inches including
the base, with the larger figure(s) and base(s) containing the
smaller one(s).  

ISSUE:

     Whether the articles are classifiable in heading 9505,
HTSUSA, as festive articles; or in heading 9502, HTSUSA, as
dolls.
                                                  
LAW AND ANALYSIS:

     Classification under the HTSUSA is made in accordance with
the General Rules of Interpretation (GRIs).  The systematic
detail of the harmonized system is such that virtually all 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.  In the event that the goods cannot be
classified solely on the basis of GRI 1, and if the headings and
legal notes do not otherwise require, the remaining GRIs may then
be applied.  The Explanatory Notes (ENs) 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 GRIs.

     Heading 9502, HTSUSA, provides for dolls representing only
human beings and parts and accessories thereof.  Although each of
the three items may be classifiable as dolls, an examination of
the provisions of competing heading 9505, HTSUSA, may indicate
that the articles are more properly classified there.

     Heading 9505, HTSUSA, provides for, among other items,
festive, carnival, and other entertainment articles.  The EN to
9505 indicates 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 
                               -3-

          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 item is not dispositive of its classification and,
consequently, does not transform an item into a festive article.

     Each of the three articles is made of non-durable material. 
Customs considers articles such as these to be made of non-
durable material since they are not designed for sustained wear
and tear, and are not purchased for their extreme worth or value
(as would be decorative, yet costly pieces of art or crystal). 
Further, despite the fact that item nos. 02703-5 and 07102-1 are
able to function as a candleholder and a nutcracker,
respectively, the primary function of all three items is
decorative, as opposed to utilitarian.  

     Although in general, figurines and dolls are not
traditionally associated or used with a particular festival
(i.e., they are not of the same type of articles cited in the ENs
to heading 9505 as examples of traditional festive articles), 
                               -4-

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.  We note that item no. 07047-5 (the wood nested Santa)
is an example of the classic "matreshka," a doll which is the
product of East-European folk art/crafts.  Although lacking the
palpable features (head, torso, extremities, gifts, etc.) of the
other two items, the wood nested Santa is in three dimensional
form.  It is our determination that all three articles would be
identified as forms of Santa Claus upon importation, and that
they meet the criteria for classification as festive articles. 

HOLDING:

     The articles identified as red Santa candleholder smoker,
Santa with sack nutcracker, and wood nested Santa, item nos.
02703-5, 07102-1, and 07047-5, respectively, are classified in
subheading 9505.10.5000, HTSUSA, as "Festive, carnival or other
entertainment articles...parts and accessories thereof: Articles
for Christmas festivities and parts and accessories thereof:
Other: Other."  The general column one rate of duty is 5.8
percent ad valorem.


                               Sincerely,




                               John Durant, Director
                               Commercial Rulings Division