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