CLA-2 RR:TC:FC 959552 MMC
Michele R. Markowitz, Esquire
Sharretts, Paley, Carter & Blauvelt, P.C.
67 Broad Street
New York, New York 10004
RE: Request for reconsideration of HRL 958397; "Reindeer Caps;"
Hats and Other Headgear; Not Toys
Dear Ms. Markowitz:
This letter is in reference to your July 25, 1996, letter
requesting reconsideration of Headquarters Ruling Letter (HRL)
958397 dated December 19, 1996, in which you were advised of the
classification under the Harmonized Tariff Schedule of the United
States Annotated (HTSUSA) of articles identified as "Reindeer
Caps". In HRL 958397 you were advised that the subject articles
were classified under subheading 6505.90.6090, HTSUSA, textile
category 659, the provision for "Hats 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: Other: Of man-made fibers: Knitted or crocheted or made
up from knitted or crocheted fabric: Not in part of braid, Other:
Other: Other." You believe that the hats are classifiable as
toys, under heading 9503, HTSUS.
FACTS:
The sample articles, identified by item nos. X53081 and
X53082, are hats/caps composed of plush, knit, man-made fibers.
Extending from the top of each cap is a pair of antlers, within
which are contained electrical wires and light emitting diodes
(LEDs). A textile patch on the front of each cap displays the
words "PRESS HERE." When pressed, a switch activates a battery
powered module sewn into the interior top of each cap. The
device causes the LEDs to flash and produces the sounds of
Christmas carols and the words "Merry Christmas" or "Happy New
Year."
Item no. X53081 is a plush hat with only a brim and antlers.
Item no. X53082 is a plush hat which depicts the face of a
reindeer (with eyes, ears, and antlers) whose stuffed muzzle
extends like a brim outward over the wearer's forehead.
ISSUE:
Whether the "Reindeer Caps" are classified in heading 9503,
HTSUS, as other toys or in heading 6505, HTSUS, as hats and other
headgear.
LAW AND ANALYSIS:
Classification under the HTSUS is made in accordance with
the General Rules of Interpretation (GRI). 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 GRI may then
be applied. The Explanatory Notes (EN) to the Harmonized
Commodity Description and Coding System, which represent the
official interpretation of the tariff at the international level,
facilitate classification under the HTSUS by offering guidance in
understanding the scope of the headings and GRI.
Chapter 65, HTSUS, covers headgear and parts thereof. Note
1(c) to chapter 65 states that "This chapter does not cover:
Dolls' hats, other toy hats or carnival articles of chapter 95."
Heading 6505, HTSUS, applies to "Hats 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." The EN to heading 6505 indicate that the heading
covers hats, whether or not trimmed (with the trimmings of any
material), and headgear made up from woven fabric, lace, net
fabric, etc., such as chefs' hats, nuns' head-dresses, nurses' or
waitresses' caps, etc., having clearly the character of headgear.
The American College Dictionary (1970), defines "hat" in
pertinent part as "1. a shaped covering for the head, usually
with a crown and a brim, worn outdoors." Although this
definition comfortably fits the reindeer hats, you assert that
the hats are toys (i.e., principally used for amusement), and
that their use as functional hats is fugitive. You state in your
submission that the hats are designed, bought, sold, advertised
and marketed as an amusing articles during the holiday season.
Heading 9503, HTSUSA, applies to "other toys," i.e., all
toys not specifically provided for in the other headings of
chapter 95. Although the term "toy" is not defined in the
tariff, the EN to chapter 95 indicates that a toy is an article
designed for the amusement of children or adults. Additionally,
the EN to chapter 95 indicates that certain toys (e.g., electric
irons, sewing machines, musical instruments, etc.) may be capable
of a limited "use," but they are generally distinguishable from
their fully functional counterparts by their size and limited
capacity.
When a 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)). As
previously noted, the reindeer hats are not only amusing but also
fully functional. Not all merchandise that amuses is properly
classified in a toy provision and we find that the potential
amusement of the reindeer hats is secondary to their utilitarian
function. The reindeer hats are fully functioning as hats which
have not only the possibility but more likely the probability of
being worn as such.
We note that the electronic devices which produce the noises
and lights do not convert the hats to toys. In 1989,
anticipating classification problems with respect to merchandise
containing such musical mechanisms, the Customs Cooperation
Council (now the World Customs Organization or WCO) provided
guidance which Customs has long followed. With electronic chips
having become relatively inexpensive and simple to install in a
wide variety of products, the CCC suggested that merchandise
containing battery-operated chips with speakers, should be
classified in the same headings as the corresponding articles not
incorporating such modules.
As you are aware, the EN to heading 9503, HTSUS, indicate
that the heading includes toys representing animals or non-human
creatures. Customs will classify a stuffed toy representing an
animal or non-human creature in subheading 9503.41, HTSUS, if the
toy is a reasonably full-figured depiction of the animal's or
creature's anatomy that the toy seeks to represent. The
representation must be constructed in a sculpted, three
dimensional form. Since the reindeer hats represent only the
head or part of the head of a reindeer, they are not classifiable
as stuffed toy animals.
Therefore, we find that the reindeer hats are not
principally designed for amusement and are not classifiable in
heading 9503, HTSUS. The goods are properly classified in
subheading 6505.90.6090, HTSUSA, textile category 659.
HOLDING:
The "Reindeer Caps," identified by item nos. X53081 and
X53082, are properly classified in subheading 6505.90.6090,
HTSUSA, textile category 659, the provision for "Hats 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: Other: Of man-made fibers: Knitted or
crocheted or made up from knitted or crocheted fabric: Not in
part of braid, Other: Other: Other." The applicable duty rate is
35.8 cents per kilogram plus 12.7 percent ad valorem.
The designated textile and apparel category may be
subdivided into parts. If so, visa and quota requirements
applicable to the subject merchandise may be affected. Since
part categories are the result of international bilateral
agreements which are subject to frequent renegotiations and
changes, to obtain the most current information available, we
suggest that you check, close to the time of shipment, the Status
Report On Current Import Quotas (Restraint Levels), an internal
issuance of the U.S. Customs Service, which is available for
inspection at your local Customs office.
Due to the changeable nature of the statistical annotation
(the ninth and tenth digits of the classification) and the
restraint (quota/visa) categories applicable to textile
merchandise, you should contact your local Customs office prior
to importation of this merchandise to determine the current
status of any import restraints or requirements.
Sincerely,
John Durant, Director Tariff Classification Appeals
Division