CLA 2 RR:CR:GC 961728 MMC
Mr. Harold Loring
Grunfeld, Desiderio, Lebowitz & Silverman
245 Park Avenue
New York, NY 10167-3397
RE: NYRL B85369 Affirmed; "Novelty Hats"
Dear Mr. Loring:
This is in reference to your April 23, 1998, letter, on behalf of Elope Inc., requesting reconsideration of New York Ruling Letter (NYRL) B85369 dated June 9, 1997, in which you were advised of the classification, under the Harmonized Tariff Schedule of the United States (HTSUS), of articles identified as "novelty hats". A catalog containing pictures of the hats, together with samples, was submitted for our review.
In NYRL B85369 you were advised that the subject articles were classified under heading 6505, HTSUS, the provision for "[h]ats and other headgear, knitted or crocheted, or made up from lace, felt or other textile fabric, in the piece (but not in strips)...whether or not lined or trimmed." You believe that the hats are classifiable under heading 9505, HTSUS, as “[f]estive, carnival or other entertainment articles, including magic tricks and practical joke articles; parts and accessories thereof.”
FACTS:
The articles are identified as “novelty hats.” The individual hats are identified as follows:
Novelty Hats
Style
Name
Description
TEB
Eyeball
Joker style hat with plastic eyeballs at the tips
TTH
Jester
Tall Horned Jester hat with bells at end.
TVH
Very Horned
Skull cap with textile spikes
TWZ
Wizard
Cone shaped wizard hat
TMG
Madhatter
Top hat with expanded stovepipe portion.
All of the hats consist of 100% polyester tricot fabric.
A trade show flyer for the subject articles submitted by the importer indicates that the trade show displays two classes of merchandise: 1) Costumes, Masks, Haunted House products and Make-up; 2) Party Goods, Balloons, and “Special Event Supplies”. “Hats, Caps and Headwear” is a category listed under the first class of merchandise.
ISSUE:
Whether the "novelty hats" are classified in heading 9505, HTSUS, as festive or entertainment articles or in heading 6505, HTSUS, as hats and other headgear.
LAW AND ANALYSIS:
Classification of merchandise under the Harmonized Tariff Schedule of the United States Annotated (HTSUS) is governed by the General Rules of Interpretation (GRI). GRI 1 provides that classification shall be determined according to the terms of the headings and any relative section or chapter notes, taken in order. Merchandise that cannot be classified in accordance with GRI 1 is to be classified in accordance with subsequent GRIs.
In Midwest of Cannon Falls, Inc. v. United States, Court No. 92 03 00206, 1996 Ct. Int’l Trade LEXIS 15 (Ct. Int’l. Trade, January 18, 1996), and 122 F.3d 1423 (Fed.Cir. 1997) (hereinafter Midwest), the Court addressed the scope of heading 9505, HTSUS, specifically, the class or kind "festive articles." It then applied its conclusions to 29 specific articles to determine whether they were included within the scope of the class "festive articles." This application provided new guidelines for the classification of “festive articles.” In general, merchandise is classifiable in heading 9505, HTSUS, as a “festive article” when the article, as a whole:
1. Is not predominately of precious or semiprecious stones, precious metal or metal clad with precious metal;
2. Functions primarily as a decoration or functional item used in celebration of and for entertainment on a holiday; and
3. Is associated with or used on a particular holiday.
In several Ruling Letters Customs has held that “Santa hats” and “witches hats” are classifiable as festive articles. See Headquarters Ruling Letter (HRL) 084288 dated July 6, 1989, and New York Ruling Letters (NYRLs) B86115 dated July 2, 1997, B88894 dated October 16, 1997, C89727 August 5, 1998, C89124 dated July 8, 1998 and 805111 dated January 6, 1995.
Unlike the hats which were the subject of these ruling letters, no evidence has been provided that the “novelty hats” are used in celebration of and for entertainment on a holiday or that any of them are a symbol of, associated with or used on a particular recognized holiday. As such they are not classifiable as festive articles pursuant to the Midwest decision.
You have cited HRL 088410 dated April 18, 1991, and HRL 088575 dated May 31, 1991, both concerning the classification of costumes as either wearing apparel of Chapters 62 or 63, or “articles of fancy dress” of heading 9505, HTSUS. While, we agree the question presented here is whether the hats can be classified as “articles of fancy dress” we do not believe the analysis of determining whether an article is wearing apparel or an “article of fancy dress” is applicable.
Rather, in HRL 958650 dated August 1, 1997, and HRL 959552, dated November 22, 1996, we had to determine whether articles identified as “reindeer caps” were classifiable as “articles of fancy dress” or headgear of heading 6505, HTSUS. The articles in question were baseball-like caps. Extending from the top of each cap was a pair of textile “antlers”. We indicated that when an article has both the potential for amusement and utility, the question becomes one of determining whether the amusement is incidental to the utilitarian purpose, or the utility purposes incidental to the amusement (See: Ideal Toy Corp. v. United States, 78 Cust. Ct. 28, C.D. 4688 (1977)). The “reindeer caps” were not only amusing but also fully functional. We found that the potential amusement was secondary to their utilitarian function. They were fully functional as hats with not only the possibility but more likely the probability of being worn as such. Like the “reindeer caps” of HRLs 959552 and 958650, the “novelty hats” are not only amusing but also fully functional. However, their potential amusement is secondary to their utilitarian function. They are fully functional headgear with not only the possibility but more likely the probability of being worn as such.
This analysis is further supported by the Explanatory Notes (ENs) to Chapter 65, HTSUS. In understanding the language of the HTSUS, the ENs of the Harmonized Commodity Description and Coding System may be utilized. The ENs, although not dispositive, or legally binding, provide a commentary on the scope of each heading, and are generally indicative of the proper interpretation of the HTSUS. See, T.D. 89-90, 54 Fed. Reg. 35127, 35128 (August 23, 1989). EN GEN to Chapter 65 states, in pertinent part, that:
...this Chapter covers hat shapes, hat forms, hat bodies and hoods, and hats and other headgear of all kinds, irrespective of the materials of which they are made and of their intended use (daily wear, theatre, disguise, protection, etc.). [emphasis added]
EN 95.05, states, in pertinent part, that:
This 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) * * *
(2) * * *
(3) Articles of fancy dress, e.g., masks, false ears and noses, wigs, false beards and moustaches (not being articles of postiche heading 67.04), and paper hats. However, the heading excludes fancy dress of textile materials, of Chapter 61 or 62.
(4) * * *
The subject hats are unlike the “articles of fancy dress” described in EN 95.05. They are durable, purchased for the purpose of wearing and re-wearing and function as a hat. We note that this analysis concurs with the submitted trade flyer which recognizes headgear as part of a class or kind of merchandise associated with costumes and not party or carnival articles.
Finally, you cite HRL 958650 dated August 1, 1997, in which we classified a pair of “Minnie Mouse Ears” as articles of fancy dress, and claim that the “novelty hats” are similar. We disagree. In HRL 958650, we performed the analysis discussed above and came to the conclusion that the ears’ possible function as a hat or headgear was minimal at best. That is not the case with any of the “novelty hats.”
For the foregoing reasons, we find that the “novelty hats” which were the subject of B85369 are not principally designed for amusement and therefore not classifiable in heading 9503, HTSUS. The goods are principally used as headgear and as such properly classified in subheading 6505.90.6090, HTSUS.
HOLDING:
The "novelty hats", are properly classified in subheading 6505.90.60, HTSUS, the provision for "[h]ats and other headgear, knitted or crocheted, or made up from lace, felt or other textile fabric, in the piece (but not in strips)...whether or not lined or trimmed: [o]ther: [o]f man made fibers: [k]nitted or crocheted or made up from knitted or crocheted fabric: [n]ot in part of braid, [o]ther: [o]ther."
NYRL B85369 is affirmed.
Sincerely,
John Durant, Director
Commercial Rulings Division