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

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