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HQ 085271

November 8, 1989

CLA-2 CO:R:C:G: 085271 DPS


TARIFF NO.: 9505.10.4000

Joel K. Simon, Esquire
Serko & Simon
One World Trade Center
Suite 3371
New York, N.Y. 10048

RE: Plastic Santa Figurine

Dear Mr. Simon:

Your letter of July 11, 1989, on behalf of Russ Berrie & Company, Inc., to our New York office has been referred to this office for reply concerning the tariff classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA), of a plastic Santa Claus figurine. A sample of the figurine, which is to be imported from Hong Kong, was provided with your request.


The subject Santa figurine is two inches tall and is described as a comical representation of a jogging Santa Claus. Santa is wearing red shorts, a green and white headband and sneakers, and is carrying a radio with earphones. The words "Santa Claus is Jogging to Town" appear on his stomach. The figure is attached to a plastic base and can stand on any flat surface.

The importer suggests that the plastic Santa figurine should be classified as a statuette and other ornamental article of plastic, under subheading 3926.40.0000, HTSUSA.


Whether the plastic Santa figurine at issue is considered a an article for Christmas festivities, classifiable under subheading 9505.10, HTSUSA; or whether the figurine should be classified as a statuette or other ornamental article, classifiable under subheading 3926.40, HTSUSA.


The General Rules for the Interpretation of the Harmonized System (GRI's) govern classification under the Harmonized Tariff Schedule. According to GRI 1, the primary consideration in determining whether merchandise should be classified in a heading should be given to the language of the heading and any relevant chapter or section notes, and, provided such headings or notes do not otherwise require, according to the remaining GRI's, taken in order. The subheadings at issue in this case are:

(a) 3926.40, Other articles of plastics and articles of other materials of headings 3901 to 3914: Statuettes and other ornamental articles; and

(b) 9505.10, Festive, carnival or other entertainment articles, including magic tricks and practical joke articles; parts and accessories thereof: Articles for Christmas festivities and parts and accessories thereof: ...

The subject Santa figurine could be considered to be a plastic statuette or other ornamental article, as well as a festive article for Christmas. Because the subheadings set forth above both appear to describe the subject merchandise, and classification cannot be determined by applying GRI 1 alone, reference to the subsequent GRI's is necessary.

When, as here, goods are prima facie classifiable under two or more headings, GRI 3 is to be applied. GRI 3(a) requires that the heading which provides the most specific description of the article shall be preferred over headings providing a more general description. Therefore, the inquiry becomes which of the competing provisions most accurately describes the subject Santa figurine.

The Explanatory Notes to the HTSUSA, which constitute the official interpretation of the tariff at the international level, provide further guidance in determining the scope of each provision. With regard to Heading 9505, HTSUSA, the provision for festive articles, Explanatory note 95.05, at p. 1590, states 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.


For the most part, the items described above which fall under Heading 9505, HTSUSA, tend to have no function other than decoration.

It is Customs' position that an article by its shape, design, ornamentation and appropriate use in connection with a recognized festive holiday, is an article that falls under Heading 9505, HTSUSA. Here, the subject Santa figure is a decorative article which depicts a character traditionally associated with Christmas. Upon review of the relevant Explanatory Notes and an examination of the submitted sample, it is clear that the subject Santa figurine fits squarely within subheading 9505.10, HTSUSA.

With regard to Heading 3926, the provision for other articles of plastics, Explanatory Note 39.26, at p. 575, states that the "heading covers articles, not elsewhere specified or included, of plastics....They include:...(3) statuettes and other ornamental articles."

When comparing the two competing four digit headings, there is no question that 9505, HTSUSA more accurately describes the subject merchandise than 3926, HTSUSA. Furthermore, because 9505.10, HTSUSA applies specifically to Christmas articles, while 3926.40, HTSUSA applies generally to statuettes and other ornamental articles of plastic, it is Customs' view that the Christmas article provision more specifically describes the Santa figurine at issue.

The final issue requiring resolution is which eight digit category the plastic Santa figurine falls under. Subheadings 9505.10.10, 9505.10.15 and 9505.10.25 cover Christmas ornaments of glass, wood and other, respectively. To qualify as a Christmas ornament, Customs requires that the following three criteria be met: (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 subject Santa figurine does not appear to meet the first two requirements. It is not considered to be a Christmas tree ornament nor does have a loop attached to it by which it can be hung from a tree. Therefore, it cannot be considered a Christmas ornament for tariff purposes.

Subheading 9505.10.30, HTSUSA covers nativity scenes and figures thereof. The subject Santa figurine cannot be considered to be a nativity scene nor a part thereof. Inasmuch as the only remaining subheadings within Heading 9505, HTSUSA, fall under the "Other:" category, subheading 9505.10.4000, HTSUSA, which covers other Christmas articles of plastics, is the appropriate provision covering the instant merchandise.


In accordance with the rationale set forth above, the subject Santa figurine is properly classifiable under subheading 9505.10.4000, HTSUSA, the provision for Christmas articles, other, of plastics. Items classified under this subheading are subject to a duty rate of 8.4 percent ad valorem.


John Durant, Director
Commercial Rulings Division

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