**HQ** 961728

April 8, 1999

CLA‑2 RR:CR:GC 961728 MMC

**CATEGORY:** Classification

**TARIFF NO.:** 6505.90.60

Mr. Harold Loring

Grunfeld, Desiderio, Lebowitz & Silverman

245 Park Avenue

New York, NY 10167-3397

**RE:** NYRL B85369 Affirmed; \"Novelty Hats\"

Dear Mr. Loring:

This is in reference to your April 23, 1998, letter, on behalf of Elope
Inc., requesting reconsideration of New York Ruling Letter (NYRL) B85369
dated June 9, 1997, in which you were advised of the classification,
under the Harmonized Tariff Schedule of the United States (HTSUS), of
articles identified as \"novelty hats\". A catalog containing pictures
of the hats, together with samples, was submitted for our review.

In NYRL B85369 you were advised that the subject articles were
classified under heading 6505, HTSUS, the provision 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.\" You believe that the hats are classifiable under
heading 9505, HTSUS, as "\[f\]estive, carnival or other entertainment
articles, including magic tricks and practical joke articles; parts and
accessories thereof."

**FACTS:**

The articles are identified as "novelty hats." The individual hats are
identified as follows:

  ----------------------------------------------------------------------------
                           **Novelty Hats**
  ----------- ------------ ---------------------------------------------------
  **Style**   **Name**     **Description**

  TEB         Eyeball      Joker style hat with plastic eyeballs at the tips

  TTH         Jester       Tall Horned Jester hat with bells at end.

  TVH         Very Horned  Skull cap with textile spikes

  TWZ         Wizard       Cone shaped wizard hat

  TMG         Madhatter    Top hat with expanded stovepipe portion.
  ----------------------------------------------------------------------------

All of the hats consist of 100% polyester tricot fabric.

A trade show flyer for the subject articles submitted by the importer
indicates that the trade show displays two classes of merchandise: 1)
Costumes, Masks, Haunted House products and Make-up; 2) Party Goods,
Balloons, and "Special Event Supplies". "Hats, Caps and Headwear" is a
category listed under the first class of merchandise.

**ISSUE:**

Whether the \"novelty hats\" are classified in heading 9505, HTSUS, as
festive or entertainment articles or in heading 6505, HTSUS, as hats and
other headgear.

**LAW AND ANALYSIS**:

Classification of merchandise under the Harmonized Tariff Schedule of
the United States Annotated (HTSUS) is governed by the General Rules of
Interpretation (GRI). GRI 1 provides that classification shall be
determined according to the terms of the headings and any relative
section or chapter notes, taken in order. Merchandise that cannot be
classified in accordance with GRI 1 is to be classified in accordance
with subsequent GRIs.

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.

In several Ruling Letters Customs has held that "Santa hats" and
"witches hats" are classifiable as festive articles. See Headquarters
Ruling Letter (HRL) 084288 dated July 6, 1989, and New York Ruling
Letters (NYRLs) 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 ruling letters, no
evidence has been provided that the "novelty hats" are used in
celebration of and for entertainment on a holiday or that any of them
are a symbol of, associated with or used on a *particular* recognized
holiday. As such they are not classifiable as festive articles pursuant
to the *Midwest* decision.

You have cited HRL 088410 dated April 18, 1991, and HRL 088575 dated May
31, 1991, both concerning the classification of costumes as either
wearing apparel of Chapters 62 or 63, or "articles of fancy dress" of
heading 9505, HTSUS. While, we agree the question presented here is
whether the hats can be classified as "articles of fancy dress" we do
not believe the analysis of determining whether an article is wearing
apparel or an "article of fancy dress" is applicable.

Rather, in HRL 958650 dated August 1, 1997, and HRL 959552, dated
November 22, 1996, we had to determine whether articles identified as
"reindeer caps" were classifiable as "articles of fancy dress" or
headgear of heading 6505, HTSUS. The articles in question were
baseball-like caps. Extending from the top of each cap was a pair of
textile "antlers". We indicated that 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)).
The "reindeer caps" were not only amusing but also fully functional. We
found that the potential amusement was secondary to their utilitarian
function. They were fully functional as hats with not only the
possibility but more likely the probability of being worn as such. Like
the "reindeer caps" of HRLs 959552 and 958650, the "novelty hats" are
not only amusing but also fully functional. However, their potential
amusement is secondary to their utilitarian function. They are fully
functional headgear with not only the possibility but more likely the
probability of being worn as such.

This analysis is further supported by the Explanatory Notes (ENs) to
Chapter 65, HTSUS. In understanding the language of the HTSUS, the 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]{.underline}, T.D.
89-90, 54 Fed. Reg. 35127, 35128 (August 23, 1989). EN GEN 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.). \[emphasis added\]

EN 95.05, 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.
>
> \(4\) \* \* \*

The subject hats are unlike the "articles of fancy dress" described in
EN 95.05. They are durable, purchased for the purpose of wearing and
re-wearing and function as a hat. We note that this analysis concurs
with the submitted trade flyer which recognizes headgear as part of a
class or kind of merchandise associated with costumes and not party or
carnival articles.

Finally, you cite HRL 958650 dated August 1, 1997, in which we
classified a pair of "Minnie Mouse Ears" as articles of fancy dress, and
claim that the "novelty hats" are similar. We disagree. In HRL 958650,
we performed the analysis discussed above and came to the conclusion
that the ears' possible function as a hat or headgear was minimal at
best. That is not the case with any of the "novelty hats."

For the foregoing reasons, we find that the "novelty hats" which were
the subject of B85369 are not principally designed for amusement and
therefore not classifiable in heading 9503, HTSUS. The goods are
principally used as headgear and as such properly classified in
subheading 6505.90.6090, HTSUS.

**HOLDING:**

The \"novelty hats\", are properly classified in subheading 6505.90.60,
HTSUS, the provision 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: \[o\]ther:
\[o\]f man‑made fibers: \[k\]nitted or crocheted or made up from knitted
or crocheted fabric: \[n\]ot in part of braid, \[o\]ther: \[o\]ther.\"

NYRL B85369 is affirmed.

Sincerely,

John Durant, Director

Commercial Rulings Division