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HQ 958002




September 22, 1995

CLA-2 RR:TC:TE 958002 GGD

CATEGORY: CLASSIFICATION

TARIFF NO.: 6217.10.0030

District Director of Customs
1 East Bay Street, Room 104
Savannah, Georgia 31401

RE: Decision on Application for Further Review of Protest No. 1704-95-100171, filed March 28, 1995, concerning the classification of "Old Fart Ties"

Dear Sir:

This is a decision on a protest filed March 28, 1995, against your decision in the classification and liquidation of goods identified as "Old Fart Ties," novelty items that were entered in August 1994.

FACTS:

At the time of entry, the protestant contended that the goods were classifiable in subheading 6307.90.9989 (should have been 6307.90.9986), Harmonized Tariff Schedule of the United States Annotated (HTSUSA), the provision for "Other made up articles, including dress patterns: Other: Other: Other, Other: Other," with an applicable duty rate of 7 percent ad valorem.

You classified the merchandise under subheading 6215.20.0000, HTSUSA, textile category 659, the provision for "Ties, bow ties and cravats: Of man-made fibers," with an applicable duty rate of 26.5 cents per kilogram plus 13.5 percent ad valorem.

Among the protestant's numerous, alternative, current claims, is that the goods should be classified in subheading 9505.90.6090, HTSUSA, the provision for "Festive, carnival or other entertainment articles...: Other: Other, Other," dutiable -2-
at 3.1 percent ad valorem; or in subheading 9505.90.2000, HTSUSA, the provision for "Festive, carnival or other entertainment articles...: Other: Magic tricks and practical joke articles; parts and accessories thereof," dutiable at 5.8 percent ad valorem.

The sample "Old Fart Tie" article (item no. OF:TIE) is a well constructed, pre-tied (in a windsor knot), black woven necktie of 100 percent polyester, with an interlining. The words "OLD FART" are printed in white letters (approximately 3/4 of an inch in height) on the upper exterior portion of the tie. When worn, the tie is held in place by an adjustable fabric neck strap with a plastic clip closure. The novelty aspects of the item consist of a plastic bladder (measuring approximately 3 inches in width by 4 inches in length) in the tie's lower interior portion, connected to a rubber tongue (measuring approximately 3/4 of an inch in width by 4 inches in length). When the plastic bladder is squeezed, air rushing through the rubber tongue produces a raspberry-like sound. In its uncompressed, natural state, the bladder is full of air, a fullness which gives the lower portion of the tie a round, distended look. The tie's appearance is rendered more absurd by the pink, rubber tongue hanging downward from the bulge. The "Old Fart Tie" is packaged for retail sale when imported, and is marketed and sold as a gag gift for a person to briefly wear when celebrating a retirement, or a 40th, 50th, or 60th birthday.

ISSUE:

Whether the merchandise is properly classified as a tie in subheading 6215.20.0000, HTSUSA; as a costume item in subheading 9505.90.6090, HTSUSA; as a practical joke item in subheading 9505.90.2000, HTSUSA; or as an other made up clothing accessory of textile in subheading 6217.10.0030, HTSUSA.

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 -3-
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.

As noted above, the "Old Fart Tie" is essentially a well constructed necktie with certain novelty aspects likely to restrict the times, places, etc., that the article may be worn. Heading 6215, HTSUS, provides for "Ties, bow ties and cravats." The ENs to heading 6215 indicate that the heading covers ties of the kinds generally worn by men (including those mounted on plastic, metal, etc., fittings to facilitate attachment to the collar).

In Headquarters Ruling Letter (HRL) 083135, issued February 16, 1990, this office considered the phrase "generally worn by men," as used in the EN to heading 6215. The goods at issue were two oversized, polka dot, polyester ties (one bow tie and one straight tie) that would perhaps compose part of a clown's costume. We noted that "ties generally worn by men (or women) conform to a certain standard of what constitutes acceptable dress." Although the oversized ties comprised wearing apparel within the scope of chapter 62, HTSUS, we found that, having been designed for comic purposes, the ties were not of the kind generally worn by men, and were thus not classified in heading 6215. In this case, the "Old Fart Tie" also serves essentially comic purposes. It is not the kind of tie generally worn by men and is not classifiable in heading 6215, HTSUS.

Heading 9505, HTSUS, provides for "Festive, carnival or other entertainment articles, including magic tricks and practical joke articles; parts and accessories thereof." The EN to heading 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.

The material's durability is of particular significance when considering whether the "Old Fart Tie" is classifiable as a part of a costume in subheading 9505.90.6090, HTSUSA. In HRL 957318, issued November 15, 1994, we stated that costumes classifiable in this subheading "are of a flimsy nature and construction, lack durability, and are generally recognized as not normal articles of apparel." As previously noted, the "Old Fart Tie" is well constructed. Although not a normal article of apparel, it is not classified in subheading 9505.90.6090, HTSUSA. -4-

With respect to whether the novelty tie is classifiable as a practical joke article in subheading 9505.90.2000, HTSUSA, we note that the EN to heading 9505 indicate that the heading also covers:

(B) Conjuring tricks and novelty jokes, e.g., packs of cards, tables, screens and containers, specially designed for the performance of conjuring tricks; novelty jokes such as sneezing powder, surprise sweets, water-jet button-holes and "Japanese flowers."

In Parksmith Corporation v. United States, 67 Cust. Ct. 405, 408, C.D. 4304 (1970), the court reviewed several dictionary and court case definitions of the term "practical joke," determining that a practical joke article is one which causes humor by "somehow placing an individual at a disadvantage through a trick or prank." Mindful of the examples suggested in the ENs and the court's determination, Customs classifies items which surprise and place a person at a humorous disadvantage as practical joke articles in subheading 9505.90.2000, HTSUSA.

In HRL 953188, issued May 18, 1993, Customs classified several rubber figures as practical joke articles. When handled by unsuspecting individuals, the water-filled toy animals/ creatures could squirt water from their mouths, dampening and surprising the handler. In HRL 956261, issued May 26, 1994, however, it was found that "Silly Spray" novelty items were humorous, but failed to surprise an individual and place him/her at a humorous disadvantage. Available in four varieties, the merchandise consisted of canned, pressurized, distilled water to be sprayed as a "Birthday Repellent" or "Weekend Extender," or to create an "Instant Vacation" or "Personal Space." The items were classified in heading 2851, HTSUS, which among other goods, provides for distilled water. Although somewhat humorous, the "Old Fart Tie" also lacks the elements of surprise and a humorous disadvantage visited upon the individual. It is not classified in subheading 9505.90.2000, HTSUSA.

Heading 6217, HTSUS, provides for "Other made up clothing accessories; parts of garments or of clothing accessories, other than those of heading 6212." The EN to heading 6217 indicate that the heading covers made up textile clothing accessories, other than knitted or crocheted, not specified or included in other headings of Chapter 62 or elsewhere in the Nomenclature. As an item of wearing apparel classifiable within the scope of chapter 62, HTSUS, yet not classifiable in heading 6215, it is -5-
our determination that the "Old Fart Tie" is provided for in heading 6217, HTSUS. The proper subheading (in 1994) is 6217.10.0030, HTSUSA.

HOLDING:

The novelty article identified as the "Old Fart Tie" (item no. OF:TIE) is properly classified (in 1994) in subheading 6217.10.0030, HTSUSA, textile category 659, the provision for "Other made up clothing accessories; parts of garments or of clothing accessories, other than those of heading 6212: Accessories, Of man-made fibers." The applicable duty rate (in 1994) is 15.5 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.

Since the rate of duty under the classification indicated above is more than the liquidated rate, you are instructed to deny the protest in full. A copy of this decision should be attached to the Form 19 to be returned to the protestant.

In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, this decision should be mailed by your office to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with the decision must be accomplished prior to mailing of the decision. Sixty days from the date of the decision, the Office of Regulations and Rulings will take steps to make the decision available to Customs -6-
personnel via the Customs Rulings Module in ACS, and to the public via the Diskette Subscription Service, the Freedom of Information Act, and other public access channels.

Sincerely,

John Durant, Director

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