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HQ 958397




December 19, 1995

CLA-2 RR:TC:TE 958397 GGD

CATEGORY: CLASSIFICATION

TARIFF NO.: 6505.90.6090

Michele R. Markowitz, Esquire
Sharretts, Paley, Carter & Blauvelt, P.C. 67 Broad Street
New York, New York 10004

RE: "Reindeer Caps;" Hats and Other Headgear; Not Festive Articles; Not Other Toys

Dear Ms. Markowitz:

This letter is in response to your request of July 25, 1995, on behalf of your client, Dan Dee, concerning the classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) of items identified as "Reindeer Caps" imported from China. Two sample caps were submitted with your request. Subsequent to the request and submission, a conference was held with Headquarters personnel on November 28, 1995. Additional materials have been submitted and considered.

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 -2-
extends like a brim outward over the wearer's forehead. The items are said to be designed, bought, sold, advertised, marketed, and primarily used as festive articles.

ISSUE:

Whether the items are classified in heading 9505, HTSUS, as festive articles; 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.

Heading 9505, HTSUS, provides for, among other items, festive, carnival or other entertainment articles. The EN to heading 9505 states, in part, 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 -3-

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.

In general, merchandise is classifiable in heading 9505, HTSUS, as a festive article when the article, as a whole:

1. is of non-durable material or, generally, is not purchased because of its extreme worth, or intrinsic value (e.g., paper, cardboard, metal foil, glass fiber, plastic, wood);

2. functions primarily as a decoration (e.g., its primary function is not utilitarian); and

3. is traditionally associated or used with a particular festival (e.g., stockings and tree ornaments for Christmas, decorative eggs for Easter).

An article's satisfaction of these three criteria is indicative of classification as a festive article. The motif of an item is not dispositive of its classification and, consequently, does not transform an item into a festive article.

Although we find the reindeer hats to be made of durable material, they are not likely to be purchased for their extreme worth or value. As is the case with hats in general, these items are both decorative and utilitarian and neither function clearly predominates. In addition to decorating the head in a humorous fashion, the hats are sturdy and warm. Since the hats do not function primarily as decorations, they do not satisfy the second criterion.

Upon examination of the third criterion, we do not find reindeer or reindeer hats to be traditionally associated or used with a particular festival. They are not similar to the types of articles cited in the EN to 9505, as examples of traditional, festive articles, nor do they particularly relate to Christmas. Reindeer are associated with cold climates and snow-filled regions of the world where they are often domesticated, trained to pull sleds, raced, hunted, eaten, etc. North American reindeer (caribou) are occasionally associated with controversy due to the effects of wolf populations on their numbers. We do not find that the reindeer hats would only be worn during the Christmas/New Year holidays. It is not uncommon to see hats of a -4-
similar nature being worn to keep the head warm, get attention, and provoke responses throughout the colder months at ski slopes, skating rinks, sports events, etc.

The fact that the reindeer hats contain electronic devices which produce the music and phrases suggestive of a holiday motif does not render the items classifiable in heading 9505, HTSUS. In 1989, anticipating classification problems with respect to merchandise containing such musical mechanisms, the Customs Cooperation Council or CCC (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.

You contend that numerous Headquarters and New York Ruling Letters (HRLs and NYRLs) support classification of the hats in either heading 9505 or 9503, HTSUS. The items classified in the rulings cited, however, are either traditionally associated with a particular festival (e.g., Santa hats), festive or carnival costume accessory headpieces (e.g., babies' hat/bib costume sets; headpiece components of cave man, convict, clown, pirate, and tiger costumes), or toys (e.g., full-figured, stuffed toy reindeer; toy bear/bottle holder). The reindeer hats are not traditionally associated with a particular festival, are not costume accessories, and are not classified in heading 9505, HTSUS.

We next consider your alternative assertion that the hats are toys (i.e., principally used for amusement), and that their use as functional hats is a fugitive use. Heading 9503, HTSUS, 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 specifically defined in the tariff, the EN to chapter 95, HTSUS, indicate that the chapter covers toys of all kinds whether designed for the amusement of children or adults. It has been Customs position that the "amusement" requirement means that a toy should be designed and used principally for amusement and should not serve a utilitarian purpose.

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 -5-
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.

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, it does little to indicate whether or not the goods are classifiable as toy hats. With respect to "use" the EN to heading 9503, HTSUS, suggest that certain toys may be capable of a limited "use," but they are generally distinguishable by their size and limited capacity from the real article. As previously noted, the reindeer hats are not only amusing but also are fully functional. Not all merchandise that amuses is properly classified in a toy provision and we find that the play value of the reindeer hats is secondary to their utilitarian purpose. 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 37.7 cents per kilogram plus 13.4 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 -6-
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

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