CLA-2 RR:CR:GC 962434ptl
Alan R. Lebowitz, Esq.
Grunfeld, Desiderio, Lebowitz & Silverman
245 Park Avenue
New York, NY 10167-3397
RE: Felt hat; plastic megaphone.
Dear Mr. Lebowitz:
This is in response to a letter of November 10, 1998, from your firm to the Customs National Commodity Specialist Division in New York, on behalf of your client, Universal Sourcing, Inc., requesting a ruling on the classification under the Harmonized Tariff Schedule of the United States (HTSUS), on a plastic megaphone and a felt hat. The letter was referred to this office for response. We regret the delay.
FACTS:
The first article under consideration, Item US-5002, is a white plastic, conically shaped like a megaphone. It is approximately 7 inches long, with a 1½ inch opening at one end widening to 5 inches at the other end. On two sides, in green lettering, accompanied by images of shamrocks, are the words “Party Irish St. Patrick’s Day 1998" and “Jameson.”
The second article, Item US-5003, is a soft, cylindrical 100% felt hat, approximately 10 inches wide and 12 inches tall with alternating 2½ inch wide green
and white stripes. The words “Jameson Irish Whiskey” have been printed, in green, on one of the white stripes.
Although your letter does not provide any information regarding the actual use of the articles other than to state they are to be used and worn in celebration of the St. Patrick’s Day Holiday, you have requested that the articles be classified as “festive articles” in subheading 9505.90.600, HTSUS.
ISSUE:
What is the classification of a plastic megaphone and a felt hat which contain advertising?
LAW AND ANALYSIS:
Merchandise is classifiable under the Harmonized Tariff Schedule of the United States (HTSUS) in accordance with the General Rules of Interpretation (GRIs). The systematic detail of the HTSUS 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 GRIs may then be applied in order.
The HTSUS headings under consideration are as follows:
6505 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; hair nets of
any material, whether or not lined or trimmed:
* * *
6505.90 Other:
* * *
Of man made fibers:
Other:
6505.90.80 Not in part of braid.
6505.90.8090 Other.
* * * * *
9505 Festive, carnival or other entertainment articles,
including magic tricks and practical joke articles;
parts and accessories thereof:
* * *
9505.90 Other:
* * *
9505.90.4000 Confetti, paper spirals or streamers,
party favors and noisemakers; parts
and accessories thereof.
In your letter, you stated that you believed both articles should be classified as festive articles in heading 9505, HTSUS. 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.
The megaphone (Item US-5002) is essentially a short plastic cone with minimal voice projection capability and is unlike megaphones associated with sporting events and cheerleaders. Of the three criteria listed in the Midwest decision, being made of plastic, it clearly satisfies the first. While the words painted on the sides of the megaphone refer to St. Patrick’s Day, one can hardly claim that a megaphone is a symbol of or is associated with any particular holiday. Rather, the megaphone is of the type of merchandise distributed at carnivals, parties, and other entertainment venues. Accordingly, the megaphone is classified in subheading 9505.90.4000, HTSUS, which covers party favors and noisemakers.
Our review of the hat, Item US-5003, leads us to a different classification. In several rulings, Customs has held that “Santa hats” and “witches hats” are classifiable as festive articles. See Headquarters Ruling Letter (HQ) 084288 dated July 6, 1989, and New York Ruling Letters (NYs) 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 rulings, no evidence has been provided that the green and white striped hat identified as Item US-5003, is used in celebration of and for entertainment on a holiday or that it is a symbol of, associated with or used on a particular recognized holiday. While the classification request for this article was submitted with a megaphone which had the words “St. Patrick’s Day” painted on it, there is no indication that there is any intent to limit the use of the hat to that particular day. Indeed, since green and white are not even the Irish national colors, its use as a decoration on that day is further limited. Additionally, the prominently displayed advertisement for Jameson Irish Whisky on the front of the hat almost converts the article into a billboard for the whiskey. As such, it is not classifiable as a festive article pursuant to the guidelines of the Midwest decision.
In understanding the language of the HTSUS, the Explanatory Notes (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). The General EN 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]
The subject hat is unlike the “articles of fancy dress” described in EN 95.05 which 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) * * *
Item US-5003 is not a flimsy paper hat used in a festive, carnival or entertainment venue. It is not principally designed for amusement purposes and is therefore not classified in heading 9505, HTSUS. Further, the prominent advertising on the hat has removed it from the class of festive articles and placed it in the realm of functional goods. As such, it is classified in subheading 6505.90.8090, HTSUS, which provides 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; hair nets of any material, whether or not lined or trimmed ... other. This ruling is consistent with HQ 961728, dated April 8, 1999, which classified novelty hats in heading 6505, HTSUS.
HOLDING:
Item US-5002, a plastic megaphone, painted in green lettering, with shamrocks and the words “Party Irish St. Patrick’s Day 1998" and “Jameson” is classified in subheading 9505.90.4000, HTSUS, which provides for [f]estive, carnival or other entertainment articles, including magic tricks and practical joke articles; parts and accessories thereof: [o]ther: [c]onfetti, paper spirals or streamers, party favors and noisemakers; parts and accessories thereof.
Item US-5003, a woven felt hat, in green and white stripes with the words “Jameson Irish Whiskey” printed on the front is classified in subheading 6505.90.8090, HTSUS, which provides 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; hair nets of any material, whether or not lined or trimmed: [o]ther: [o]f man made fibers: [o]ther: [n]ot in part of braid, [o]ther.
Sincerely,
John Durant, Director
Commercial Rulings Division