HQ 966596

July 25, 2003

CLA-2 RR:CR:TE 966596 KSH

CATEGORY: Classification

TARIFF NO.: 6505.90.9060

Port Director

Customs and Border Protection

2^nd^ and Chestnut Streets

Philadelphia, PA 19106

RE: Application for Further Review of Protest number 1101-03-100215; 19
CFR §174.21(b)

Dear Port Director:\
\
This is in reply to the Application for Further Review of Protest (AFR)
number 1101-03-100215, dated June 30, 2003, concerning the
classification of "carnival hats" under the Harmonized Tariff Schedule
of the United States (HTSUS). The goods were entered and excluded on
June 16, 2003 and June 17, 2003. The protest of exclusion was filed on
June 30, 2003. A catalog and samples of the articles at issue were
submitted for our review.

Further review of the AFR is warranted pursuant to 19 C.F.R. §§174.24
and 174.25 as the issue presented herein involves questions of law or
fact which have not been ruled upon by the Commissioner of Customs, or
his designee or by the Customs courts.

FACTS:

The articles are identified in Protestant's catalog as "novelty hats",
"light up", "Viking and Indian" and "costume hats". The individual hats
are identified as follows:

  ----------------------------------- -----------------------------------
  Style Number                        Description

  19350                               Carnival hat with 5 spires

  19351                               Viking with horns and long braid

  19352                               Chinese skull cap with long braids

  19663                               Black/silver carnival jester

  19665                               Carnival jester with horns and
                                      bells

  19923                               Giant horn hat

  19928                               Carnival hat -- 4 arms and balls

  19928                               Fleece jester[^1]

  18983                               7 horn carnival hat with horns

  19087                               6 point carnival jester with bells

  19722                               Hamburger hat

  19724                               Light-up carnival hat with bells

  19726                               Moose hat

  19860                               4 point carnival tall hat with
                                      stars

  20051                               Parrot hat
  ----------------------------------- -----------------------------------

All of the hats with the exception of styles 19350 and 19923 are made of
a polyester velour, polyester felt, or polyester foam-backed fabric, or
some combination thereof. Style 19350 and 19923 are made of cotton
fabric. All but three of the subject hats are of knit construction.
Three of the subject hats, styles 19350, 19923 and 19352 are of woven
construction.

The protestant's website states that its hats are "\[t\]he best selling
novelty, souvenir, costume, and party hats and accessories."

ISSUE:

Whether the novelty hats, "light up", Viking and costume hats are
classified in heading 9505, HTSUS, as carnival articles or in heading
6505, HTSUS, as hats and other headgear.

LAW AND ANALYSIS:

Classification of goods under the 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 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 HTSUS and
are generally indicative of the proper interpretation of the headings.

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 Explanatory 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**:
>
> \* \* \*

(f) Dolls' hats, other toy hats or carnival articles (**Chapter 95**).

The samples at issue were classified under subheading 6505.90.6090,
HTSUS, which provides 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; hair-nets of
any material, whether or not lined or trimmed."

Protestant argues that the hats should be classified in subheading
9505.90.6000. 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) Decorations such as festoons, garlands, Chinese lanterns, etc., as
    well as various decorative articles made of paper, metal foil, glass
    fibre, etc., for 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 holiday are also classified here.

(2) Articles traditionally used at Christmas festivities, e.g.,
    artificial Christmas trees (these are sometimes of the folding
    type), nativity scenes, Christmas crackers, Christmas stockings,
    imitation yule logs.

(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.

Protestant argues, in the alternative, that the hats should be
classifiable as toy hats.

CBP has consistently classified novelty hats substantially similar to
the hats at issue in subheading 6505.90, HTSUS. See, e.g., HQ 961728,
dated April 8, 1999, [HQ 962434](../detail.asp%3Fru=962434), dated
November 19, 1999, [PD C89986](../detail.asp%3Fru=c89986), dated October
1, 1998, [NY H86802](../detail.asp%3Fru=h86802), dated January 23, 2002
and [NY I82388](../detail.asp%3Fru=i82388), dated June 27, 2002. 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]{.underline}.[^2]

We note, however, that the aforementioned rulings have dealt with a
determination of whether the hats were classifiable as festive articles
of 9505, HTSUS, or headgear of heading 6505, HTSUS. In contrast to the
cited rulings above, protestant alleges that the hats at issue are
carnival hats which are excluded from Chapter 65, HTSUS, by Chapter Note
1(c). In support of protestant's argument that the hats are properly
classifiable in heading 9505, HTSUS, protestant has submitted as
exhibits five letters from various purchasers stating protestant's
reputation in the amusement industry as a purveyor of quality amusing
items for sale and distribution at carnivals, theme and amusement parks
across the United States.

Upon further review of the EN for Chapter 65, HTSUS, we note that the
only EN which references Chapter 95, HTSUS, is the EN for 6506, HTSUS.
Heading 6506, HTSUS, applies to \"Other headgear, whether or not lined
or trimmed.\" The EN to heading 6506, HTSUS, indicates that the heading
covers all hats and headgear not classified in the preceding headings of
the chapter, or in chapters 63, 68, or 95. The EN suggests that the
heading covers, in particular, "safety headgear (e.g., for sporting
activities, military or firemen\'s helmets, motor-cyclists\', miners\'
or construction workers\' helmets), whether or not fitted with
protective padding or, in the case of certain helmets, with microphones
or earphones". It also covers hats and headgear of rubber or plastics,
leather or composition leather, furskin or artificial fur, feathers or
artificial flowers or metal.

The specific exclusion of hats classifiable in Chapter 95, HTSUS, from
heading 6506, HTSUS, raises the conclusive presumption that the omission
of any further references to Chapter 95, HTSUS, within Chapter 65,
HTSUS, was intentional. *Expressio unius exclusio alterius.*

Any doubt as to the meaning of "carnival articles", as set forth in
heading 9505, HTSUS, may be resolved by application of the doctrine of
*noscitur sociis*. That doctrine provides that the meaning of the word
"carnival articles", as intended by Congress in that enumeration, may be
gleaned by the meaning of other words with which they are associated.
The EN's clearly indicate that the articles contained therein are
non-durable items used during a celebration (i.e., paper streamers,
confetti, paper hats). The hats at issue are unlike any of the articles
enumerated in the EN's and are not the kind of carnival hats provided
for in heading 9505, HTSUS.

Protestant further argues that inasmuch as heading 9505, HTSUS is
generally regarded as a \"use\" provision, the principal use of the hats
is for amusement. When the classification of an article is determined
with reference to its principal use, Additional U.S. Rule of
Interpretation 1(a), HTSUS, provides that, in the absence of special
language or context which otherwise requires, such use is to be
determined in accordance with the use in the United States at, or
immediately prior to, the date of importation, of goods of that class or
kind to which the imported goods belong, and the controlling use is the
principal use.

While Additional U.S. Rule of Interpretation 1(a), HTSUS, provides
general criteria to discern the class or kind's principal use, it does
not provide specific criteria for individual tariff provisions. The
courts have provided factors, which are indicative but not conclusive,
to apply when determining whether merchandise falls within a particular
class or kind. They include: general physical characteristics,
expectation of the ultimate purchaser, channels of trade, environment of
sale (accompanying accessories, manner of advertisement and display),
use in the same manner as merchandise which defines the class, economic
practicality of so using the import, and recognition in the trade of
this use. See [Lenox Collections v. United States]{.underline}, 19 CIT
345, 347 (1995); [Kraft, Inc, v. United States]{.underline}, 16 CIT 483
(1992), [G. Heileman Brewing Co. v. United States]{.underline}, 14 CIT
614 (1990); and [United States v. Carborundum Company]{.underline}, 63
CCPA 98, C.A.D. 1172, 536 F. 2d 373 (1976), cert. denied, 429 U.S. 979
(1976).

In applying the preceding factors, protestant argues that the physical
characteristics of the hats are designed to amuse and cannot be
considered functional by virtue of their bold, oversized, outrageous
nature; the ultimate consumer expects to be amused by the hats; the hats
are bought and sold as carnival articles; the hats are sold through
carnivals, amusement and theme parks; the hats are intended to be worn
at the carnival and not worn again; the hats are relatively inexpensive;
and, the hats are recognized in the trade as items dedicated primarily
to that market.

Four letters submitted by protestant acknowledge that while the hats are
primarily purchased during the summer months, the hats provide
significant warmth causing the wearer to experience some discomfort.
Protestant also states that the hats are not designed for long term use.
Rather protestant states that the hats are intended to be worn while at
the carnival only to be later stored as a memory of the visit.
Protestant does not argue that the hats are non-durable as other goods
classifiable in heading 9505, HTSUS, are generally.

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.
Moreover, as evidenced by protestant's submissions, the subject hats
have a utilitarian purpose of providing warmth in addition to any
amusement. While the hats, with their comical and whimsical appearance,
will be a source of enjoyment, humorous diversion and frivolous
entertainment, the hats 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.
Furthermore, we do not agree with protestant's submission that the hats
would be misplaced outside a carnival setting.

Although protestant asserts that the hats are bought and sold as
carnival articles and are recognized as carnival articles, protestant's
customer lists evidence that many of its sales are not to amusement or
theme parks. Moreover, protestant's website states that it sells the
best selling novelty, souvenir, costume, and party hats and accessories.
Notably, the hats are not held out to be carnival or toy hats.

Furthermore, our review of competitors' websites picture carnival hats
as paper hats commonly associated with children's birthday party hats
and New Years Eve hats. See
[www.bargaingizmos.co.uk](http://www.bargaingizmos.co.uk/) and
www.harrogatefair.com.

Protestant has offered a thorough discussion in its submission of the
history of carnivals and their metamorphosis into amusement parks as
evidence that the hats are carnival articles. At this juncture we need
not determine whether "amusement park" is synonomous with "carnival" as
protestant has not demonstrated that the hats are carnival articles.

In essence, protestant is attempting to avert prior rulings which have
classified substantially similar articles as headgear of heading 6505,
HTSUS, by arguing that the classification of the hats at issue should be
governed by general purchase of the hats by purveyors in the amusement
industry. Protestant also tries to avert prior rulings by calling its
hats "carnival" as opposed to "festive". Carnival hats are not
classifiable by the domain in which they may be sold. Although the
channels of trade in which the merchandise moves is one factor which may
be taken into consideration in determining the principal use of a good,
it is not alone indicative evidence of the proper classification.

Protestant alternatively argues that the hats should be classified as
toys of heading 9503. Heading 9503, HTSUS, applies to \"other toys,\"
i.e., all toys not specifically provided for in the other headings of
chapter 95, HTSUS. 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, HTSUS, 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 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]{.underline}, 78 Cust.
Ct. 28, C.D. 4688 (1977)). As previously noted, the hats are not only
amusing but also fully functional. Not all merchandise that amuses is
properly classified in a toy provision. We also note that the hat is
worn and not played with. It is designed to be worn on the head.

We are of the opinion that the hats are specifically provided for as
hats of heading 6505, HTSUS, even if the decoration of the hats may
prevent their use on more than an occasional basis. The hats remain
objects used to wear upon the head of the purchaser. As such, they are
not described by heading 9505, HTSUS, as a carnival article.

HOLDING:

The protest should be DENIED. Hat styles 19923 and 19350 are classified
in subheading 6505.90.2060, the provision for which provides for
"\[h\]ats and 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 cotton, flax or both: not knitted:
\[c\]ertified hand-loomed and folklore products; and headwear of cotton,
other." The duty rate will be 7.6 percent ad valorem. The designated
textile category code is 359.

Hat style 19352 is classified in subheading 6505.90.8090, HTSUS, which
provides 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: \[n\]ot in part of braid, \[o\]ther: \[o\]ther: \[o\]ther.\" The
duty rate will be 19 cents per kilogram + 6.9% ad valorem. The
designated textile category code is 659.

The remaining hats are classified in subheading 6505.90.6090, 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: of 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: \[o\]ther." The
duty rate will be 22 cents per kilogram plus 7.7% ad valorem. The
designated textile category code is 659.

The designated textile and apparel category may be subdivided into
parts. If so, the 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 your client check, close to the time of shipment,
the [Textile Status Report for Absolute Quotas]{.underline}, an issuance
of CBP which is available on the CBP website at www.cbp.gov.

Due to the changeable nature of the statistical annotation (the ninth
and tenth digits of the classification) and the restraint (quota/visa)
categories, your client should contact the local CBP office prior to
importation of this merchandise to determine the current status of any
import restraints or requirements.

In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065,
dated August 4, 1993, Subject: Revised Protest Directive, you are to
mail this decision, together with the Customs Form 19, 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 the decision.

No later than sixty (60) days from the date of this decision, the Office
of Regulations and Rulings will make the decision available to CBP
personnel, and to the public on the CBP Home Page on the World Wide Web
at [www.cbp.gov](http://www.bcbp.gov/), by means of the Freedom of
Information Act, and other means of public distribution.

> Sincerely,

Myles B. Harmon, Director

Commercial Rulings Division

### 

[^1]: We note that the invoice identifies two hats of different styles
    as 19928, however petitioner's supplemental petition refers to
    styles 19928 and 19929.

[^2]: We acknowledge that witches and santa hats of durable material
    have been previously classified in heading 9505, HTSUS. See HQ
    [084288](../detail.asp%3Fru=084288), dated July 6, 1989 and [HQ
    088410](../detail.asp%3Fru=088410), dated April 18, 1991. However,
    we may reconsider the classification of these articles in heading
    9505, HTSUS, in the future.