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HQ W968139




October 5, 2006

CLA-2 RR:CTF:TCM W968139 KSH

CATEGORY: CLASSIFICATION

TARIFF NO.: 6505.90

Mr. Dennis A. Schluckbier
Hayes Specialties Corporation
1761 East Genesee
Saginaw, Michigan 48601

RE: Revocation of New York Ruling Letter (NY) A81378, dated April 11, 1996; Classification of a Novelty Hat.

Dear Mr. Schluckbier:

This letter is to inform you that the Bureau of Customs and Border Protection (CBP) has reconsidered New York Ruling Letter (NY) A81378, issued to you on April 11, 1996, concerning the classification under the Harmonized Tariff Schedule of the United States (HTSUS) of a novelty top hat. The article was classified in subheading 9505.90.6020, HTSUS, which provided for “Festive, carnival or other entertainment articles, including magic tricks and practical joke articles; parts and accessories thereof: Other: Other: Hats: Other.” We have reviewed that ruling and found it to be in error. Therefore, this ruling revokes NY A81378.

Pursuant to section 625(c), Tariff Act of 1930, (19 U.S.C. 1625(c)), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act, Pub. L. 103–182, 107 Stat. 2057, 2186 (1993), notice of the proposed revocation of NY A81378 was published in the Customs Bulletin, Vol. 40, No. 31, on July 26, 2006. No comments were received in response to the notice.

FACTS:

The novelty top hat is intended for use at parties, carnivals, Mardi Gras and the like. The top portion of the hat extends almost 11 inches high and its brim measures two inches wide. The hat is made of man-made fiber material. The hat is unlined with single stitching throughout. It is available in assorted colors and is identified by the following item numbers: 9648, 9649, 9650, 9651, 9652 and 9653.

ISSUE:

Whether the novelty top hat is classified in heading 9505, HTSUS, as festive, carnival or other entertainment articles or in heading 6505, HTSUS, as hats and other headgear.

LAW AND ANALYSIS:

Classification of goods under the HTSUSA is governed by the General Rules of Interpretation (GRI). GRI 1 provides that classification shall be determined 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 Harmonized Commodity Description and Coding System Explanatory Notes (EN), constitute the official interpretation at the international level. While neither legally binding nor dispositive, the EN provide a commentary on the scope of each heading of the HTSUSA and are generally indicative of the proper interpretation of the headings. It is Customs and Border Protections’ (CBP) practice to follow, whenever possible, the terms of the ENs when interpreting the HTSUSA. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

Chapter 65, HTSUS, covers headgear and parts thereof. Note 1(c) to chapter 65, HTSUS, states that "This chapter does not cover: Dolls' hats, other toy hats or carnival articles of chapter 95."

Although Note 1(c) excludes toy hats and carnival articles, it does not similarly exclude festive and entertainment articles from its scope.

The Explanatory Notes further identify the class of goods covered by Chapter 65, HTSUS. They read in pertinent part:

With the exception of the articles listed below 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.).

This Chapter does not include:

Dolls’ hats, other toy hats or carnival articles (Chapter 95).

Among other items, heading 9505, HTSUS, provides for festive, carnival or other entertainment articles.

Subheading 9505.90.6000, HTSUS, provides for “[f]estive, carnival or other entertainment articles, including magic tricks and practical joke articles; parts and accessories thereof: [o]ther:[o]ther.”

The EN to heading 9505, HTSUS, state, 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) Festive decorations used to decorate rooms, tables, etc. (such as garlands, lanterns, etc.); decorative articles for Christmas trees (tinsel, coloured balls, animals and other figures, etc); cake decorations which are traditionally associated with a particular festival (e.g., animals, flags).

(2) Articles traditionally used at Christmas festivities, e.g., artificial Christmas trees, nativity scenes, nativity figures and animals, angels, Christmas crackers, Christmas stockings, imitation yule logs, Father Christmases.

(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) Throw-balls of paper or cotton-wool, paper streamers (carnival tape), cardboard trumpets, “ blow-outs ”, confetti, carnival umbrellas, etc.

CBP has consistently classified novelty hats substantially similar to the hat at issue in subheading 6505.90, HTSUS. See, e.g., HQ 961728, dated April 8, 1999, HQ 962434, dated November 19, 1999, NY G80946, dated September 12, 2000, NY F82865, dated February 22, 2000, NY F89393, dated August 3, 2000, NY G88704, dated April 11, 2001, NY H87806, dated March 15, 2002, NY I82388, dated June 27, 2002 and NY L88538, dated November 25, 2005. In NY B85369, dated June 9, 1997, CBP classified novelty hats of 100% polyester tricot in heading 6505, HTSUS. In so doing, we indicated that hats classifiable in heading 9505, HTSUS, are those which qualify as a costume and are made of non-durable material and flimsy construction. Id.

We acknowledge that witches and santa hats of durable material have been previously classified in heading 9505, HTSUS. See HQ 084288, dated July 6, 1989 and HQ 088410, dated April 18, 1991. However, we may reconsider the classification of these articles in heading 9505, HTSUS, in the future. The Explanatory Notes to Chapter 65, HTSUS, state that the chapter covers all hats irrespective of their use such as daily wear, theatre, disguise or protection. Indeed hats have many functions beyond and in addition to protection from the elements. Among those functions are as a sign of prestige and power, cultural and ethnic identity, religious affirmation, cultural traditions and beliefs or simply adornment. While the hat, with its comical and whimsical appearance, will be a source of enjoyment, humorous diversion and frivolous entertainment, the hat likely will not generate the same type of enjoyment and emotion one derives from actually playing with objects commonly thought of as articles whose primary purpose is amusement.

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)). As previously noted, the hat is not only amusing but also fully functional. Not all merchandise that amuses is properly classified in an entertainment provision.

We are of the opinion that the hat is specifically provided for as a hat of heading 6505, HTSUS, even if the style of the hat may prevent its use on more than an occasional basis. The hat remains an object used to wear upon the head of the purchaser. As such, it is not described by heading 9505, HTSUS, as a festive, carnival or other entertainment article.

HOLDING:

By application of GRI 1, the novelty top hat is classified in heading 6505, HTSUS. If the novelty top hat is knitted or crocheted or made up of knitted or crocheted fabric, it is classified in subheading 6505.90.6090, 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; : 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 rate of duty is 20 cents per kilogram plus 7% ad valorem. If made up of felt or of other textile fabric, the novelty top hat 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; : Other: Of man-made fibers: Other: Not in part of braid, Other: Other: Other." The rate of duty is 18.7 cents per kilogram plus 6.8% ad valorem.

Merchandise classified in subheadings 6505.90.6090 and 6505.90.8090, HTSUS, fall within textile category 659. Quota/visa requirements are no longer applicable for merchandise which is the product of World Trade Organization (WTO) member countries. The textile category number above applies to merchandise produced in non-WTO member-countries. Quota and visa requirements are the result of international agreements that are subject to frequent negotiations and changes. To obtain the most current information on quota and visa requirements applicable to this merchandise, we suggest you check, close to the time of shipment, the "Textile Status Report for Absolute Quotas," which is available on our web site at www.cbp.gov. For current information regarding possible textile safeguard actions on goods from China and related issues, we refer you to the web site of the Office of Textiles and Apparel of the Department of Commerce at http://otexa.ita.doc.gov.

EFFECT ON OTHER RULINGS:

NY A81738, is hereby revoked. In accordance with 19 U.S.C. 1625(c), this ruling will become effective 60 days after publication in the Customs Bulletin.

Sincerely,

Myles B. Harmon, Director
Commercial and Trade Facilitation Division

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