HQ 952821

March 3, 1993

CLA-2 CO:R:C:F 952821 LPF

CATEGORY: Classification

TARIFF NO.: 9502.10.80; 9505.10.40

District Director

U.S. Customs Service

P.O. Box 619050

1205 Royal Lane

Dallas/Ft. Worth, TX 75261

RE: Internal Advice Request No. 64/92; Rocking Chair Santa Claus,

Hanging Witch, Hanging Vampire; Heading 9505, festive

article; Heading 9502, doll; HRL\'s 952520, 951422, 952249,

950698

Dear Sir:

This is in response to Internal Advice Request No. 64/92,

initiated by a letter dated September 2, 1992, submitted by DJS

International Services, Inc., P.O. Box 612785 Dallas/Ft. Worth

Airport, TX 75261, on behalf of Gemmy Industries Corporation.

The request regards the classification of a Rocking Chair Santa

Claus, Hanging Witch, and Hanging Vampire under the Harmonized

Tariff Schedule of the United States Annotated (HTSUSA).

FACTS:

The articles at issue, which are imported from either China

or Taiwan, are as follows:

1\. The Rocking Chair Santa Claus is a Santa Claus

figure approximately 2 feet in length sitting in a

wooden and plastic rocking chair. The figure\'s face,

hands, and torso are plastic, while its outfit, beard,

and moustache are textile. There is a compartment in

the bottom of the chair for batteries which power the

music module. A device within the article shifts

the article\'s weight causing the rocking chair to begin

rocking, and to continue moving in this manner.

2\. The Hanging Witch is a figure of a witch

approximately 24 inches in length, designed to be

suspended from a point by a plastic string attached to

the back. When the battery is activated by sound or

touch, the eyes light up and the witch vibrates and

makes eerie sounds.

-2-

3\. The Hanging Vampire is a figure of a male vampire

approximately 24 inches in length, designed to be

suspended from a point by a plastic string attached to

the back. When the battery is activated by sound or

touch, the vampire vibrates, its eyes light up, and it

makes eerie sounds.

ISSUE:

Whether the Santa Claus, witch and vampire figures are

classifiable in heading 9502 as dolls or 9505 as festive

articles.

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\....

\* \* \*

-3-

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.

The Santa Claus, witch, and vampire figures are made of non-

durable material. Customs will consider these articles 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). Moreover, when examining

the articles, as a whole, it is evident that the Santa Claus

figure is traditionally associated or used with the particular

festival of Christmas.

We note that the instant articles are not animated display

figures, but are other types of figures or dolls.

Characteristically, animated display figures are constructed of

various materials and their torsos include a motor which when

plugged into an electrical socket, and switched on, causes the

figure\'s head, arms, etc. to move (usually, synchronously from

side to side).

Generally, figurines and dolls are not traditionally

associated or used with a particular festival; 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.

-4-

The fact that the Santa Claus figure has a beard, moustache,

and fat belly and wears a fur-lined cap, oversized coat with

buckle, and boots, 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). For

these reasons, the Santa Claus figure is classifiable, pursuant

to GRI 1, in 9505 as a festive article. See Headquarters Ruling

Letters (HRL\'s) 952520, issued October 22, 1992, and 951422,

issued November 25, 1992.

The Santa figure is classifiable within subheading 9505.10

which provides for articles for Christmas festivities. At the

eight digit subheading level, the Santa figure is not

classifiable in subheadings 9505.10.10, 9505.10.15 and 9505.10.25

which cover Christmas ornaments of glass, wood and other,

respectively. The Santa figure does not meet our criteria for

Christmas ornaments. See HRL 951422, 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 not

composed primarily of plastic, it is classifiable in subheading

9505.10.50.

In contrast, it is Customs\' position, that the witch and

vampire figures are not traditionally associated or used with a

particular festival. Witches, vampires, ghosts and other scary

beings are not particularly related to Halloween since they often

appear in mythology, movies or cartoons of no significance to

Halloween. These articles are not ejusdem generis with articles

cited in the EN\'s to 9505, as exemplars of traditional, festive

articles. The articles must be classified elsewhere. See HRL

952249, issued October 30, 1992.

Heading 9502, HTSUSA, provides for dolls representing human

beings. The EN\'s to 9502 state that \"the heading includes not

only dolls designed for the amusement of children, but also dolls

intended for decorative purposes (e.g., boudoir dolls, mascot

dolls), or for use in Punch and Judy or marionette shows, or

those of a caricature type. \[Dolls\] may be jointed and contain

mechanisms which permit limb, head or eye movements as well as

reproductions of the human voice, etc\....\"

-5-

Heading 9503 provides for other toys and reduced-size

(\"scale\") models. The EN\'s to 9503 state that, inter alia, the

heading covers:

\(A\) All toys not included in headings 95.01 and 95.02.

Many of the toys of this heading are mechanically

or electrically operated.

These include:

\(1\) Toys representing animals or non-human

creatures even if possessing predominantly

human physical characteristics (e.g., angels,

robots, devils, monsters), including those

for use in marionette shows.

In the past, Customs has issued several decisions which

address the relationship between headings 9502 and 9503 in light

of the above Explanatory Notes. These decisions focus on the

fact that heading 9502 restricts its coverage to include dolls

representing only human beings.

The witch and vampire figures fit the description of \"dolls

representing only human beings,\" as opposed to non-human

creatures. In this regard, we emphasize that neither figure

possesses non-human features, that is, body parts that do not

exist on human beings (e.g., halos, wings, horns, tails, etc.).

Although the nose, chin, or teeth of these figures may be bigger

and longer than seen on humans, these features are merely

embellishments or alterations of human physical attributes. This

does not mean the figures possess non-human features or body

parts which make the figures non-human.

We also note that Customs, in the past, has considered

whether a figure is widely recognized or established in popular

culture as a non-human creature, to be some indicia of that

figure\'s classification as a \"non-human creature,\" as opposed to

a \"doll.\" It is Customs position that this consideration (e.g.,

the figures\' recognition in popular culture) does not compel us

to classify witches and vampires as non-human creatures. Rather,

they are classifiable as dolls. See HRL 950698, issued March 20,

1992\.

For these reasons, the witch and vampire figures are

classifiable in heading 9502. The applicable subheading is

9502.10.8000.

-6-

HOLDING:

The Rocking Chair Santa Claus is classifiable in subheading

9505.10.5000, HTSUSA, as \"Festive, carnival or other

entertainment articles,\...Articles for Christmas festivities and

parts and accessories thereof: Other \[than Christmas ornaments\]:

Other.\" The general column one rate of duty is 5.8 percent ad

valorem.

The Hanging Witch and Hanging Vampire are classifiable in

subheading 9502.10.8000, HTSUSA, as \"Dolls, representing only

human beings and parts and accessories thereof: Dolls, whether or

not dressed: Other: Other: Other.\" The general column one rate

of duty is 12 percent ad valorem.

You should advise the internal advice applicant of this

decision and forward them a copy.

Sincerely,

John Durant, Director

Commercial Rulings Division