HQ 086388: Reconsideration of NYRLs 830911, 831612 and 835595; Elephant Jock Strap, as an article of fancy dress, is of a class of merchandise separate and distinct from toys and is excluded from Chapter 95 by virtue of Note 1(e), Chapter 95.

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                            HQ 086388

                         April 25, 1990



CLA-2 CO:R:C:G 086388 CRS

CATEGORY:  Classification

TARIFF NO.:  6114.30.3060

Ms. Jean Maguire
Area Director of Customs
U.S. Customs Service
New York Seaport
6 World Trade Center
New York, NY 10048-0945

RE:  Reconsideration of NYRLs 830911, 831612 and 835595; Elephant
     Jock Strap, as an article of fancy dress, is of a class of
     merchandise separate and distinct from toys and is excluded
     from Chapter 95 by virtue of Note 1(e), Chapter 95.

Dear Ms. Maguire:

     This is in reply to your memorandum dated January 22, 1990,
file 830911, in which you requested reconsideration of New York
Ruling Letter (NYRL) 830911 dated September 12, 1988, NYRL 831612
dated September 16, 1988, and NYRL 835595 dated November 24,
1989.

FACTS:

     The merchandise at issue in the above-referenced rulings
consisted of various articles of novelty apparel.  NYRL 835595
involved the classification of an article of knitted fabric of
oversized proportions designed to cover the male genital area.
The article, marketed under the name "Superstud," was classified
in subheading 9503.90.6000, Harmonized Tariff Schedule of the
United States Annotated (HTSUSA).

     NYRL 831612 concerned the classification of a nylon knit
article with an exaggerated frontal section described as "super
man shorts."  NYRL 830911 concerned, in part, a jock strap of
knit and woven man-made fabric, the pouch of which was adorned
with the likeness of a king with crown.  Although the rulings
were issued prior to the entry into force of the Harmonized
System, both articles were classified, on an advisory basis, in
subheading 9503.90.6000.

     Pursuant to your request for reconsideration of the above
rulings, you have submitted a sample of an "elephant jock strap,"
a 100 percent knit nylon groin pouch with a seven inch "trunk."
There are large "elephant ears" on either side of the pouch, and
attached to the front or "face" of the article are "eyes" and a
tuft of "hair."  An elastic strap or G-string girds the article
around the wearer's loins.

     The elephant jock strap is unrelated to the NYRLs at issue
but is representative of the articles which were the subject of
those rulings.  The jock strap was imported from Taiwan through
the port of Los Angeles and was classified in subheading
9503.90.6000, HTSUSA.

ISSUE:

     Whether the article in question is an article designed to
amuse such that it is classifiable as a toy of heading 9503,
HTSUSA; alternatively, whether it is classifiable as fancy dress
of heading 9505, HTSUSA, as underwear of heading 6107, HTSUSA, or
as other knitted garments of heading 6114, HTSUSA.

LAW AND ANALYSIS:

     Heading 9503, HTSUSA, covers other toys; reduced-size
("scale") models and similar recreational models, working or not;
puzzles of all kinds; and accessories.  The official
interpretation of the Harmonized System at the international
level (four and six digits) is embodied in the Explanatory Notes.
The General Explanatory Note to Chapter 95, HTSUSA, provides that
the "Chapter covers toys of all kinds whether designed for the
amusement of children or adults."

     The fact that an article can be worn does not prevent it
from being considered a toy.  In United States v. Topps Chewing
Gum, Inc., 440 F.2d 1384 (1973), it was held that buttons,
designed for wearing and on which were written humorous sayings,
were dutiable as toys in item 737.90, Tariff Schedules of the
United States Annotated.  In Topps, Judge Lane stated that, "[i]f
the purpose of an object is to give the same kind of enjoyment as
playthings, its purpose is amusement, whether the object is to be
manually manipulated, used in a game, or as here, worn."  440
F.2d 1384, 1385 (1971).  While the article in question doubtless
has considerable amusement value, we do not believe that the fun
or amusement that it stimulates "is essentially the same kind of
frivolous enjoyment [that children] would derive from objects
which we commonly think of as toys."  Id at 1385.  Rather, it is
Customs' view that the article in question contemplates an
entirely different form of entertainment and is therefore a class
of merchandise separate and distinct from toys.


     The NYRLs discussed above were issued during the transition
from the Tariff Schedules of the United States Annotated (TSUSA)
to the HTSUSA.  Under the TSUSA, there was no provision for
"entertainment articles" as distinct from toys.  Now, however,
heading 9505, HTSUSA, covers festive, carnival and other
entertainment articles, including fancy dress articles of
textiles.  Mary Brooks Picken's, The Fashion Dictionary, 134 (3rd
ed. 1973), defines fancy dress as a "costume representing a
nation, class, calling etc., as worn to a costume ball or
masquerade party."  However, Note 1(e), Chapter 95, HTSUSA,
excludes fancy dress of textiles of Chapter 61 and 62 from the
coverage of Chapter 95.  The elephant jock strap is a form of
costume to the extent that it represents a fashion of dress
appropriate to a particular occasion.  Consequently, we are faced
with the question of whether this particular item of fancy dress
is properly classifiable in either Chapter 61 or 62.  If so, it
is excluded from classification anywhere in Chapter 95, either as
a toy of heading 9503 or as an article of fancy dress of heading
9505.

     Heading 6212, HTSUSA, covers various foundation and body-
support garments, whether or not knitted or crocheted, including
jock straps.  The article in question, although loosely referred
to as a jock strap, is not designed to provide support and is
therefore not classifiable in heading 6212.

     Heading 6107, HTSUSA, covers men's or boys' underwear.  The
difficulty in classifying the elephant jock strap as underwear of
heading 6107 is that the article is undoubtedly designed for
display and thus is not an undergarment within the common meaning
of that word.  Moreover, Customs' Guidelines for the Reporting of
Imported Products in Various Textile and Apparel Categories, 53
FR 52563, 52570, state that the term "underwear" refers to
"garments which are worn under other garments and are not exposed
to view when the wearer is conventionally dressed for appearance
in public, indoors or out-of doors."  Here, the article's sole
purpose is display.

     Heading 6114, HTSUSA, covers other knitted garments which
are not included more specifically in other headings of Chapter
61.  According to the Explanatory Notes, which are the official
interpretation of the Harmonized System at the international
level, (four and six digits) these other garments include, inter
alia, such diverse articles as aprons, boiler suits, smocks and
other protective clothing, academic robes, jockey's silks, ballet
skirts and leotards.  Although a novelty article such as an
elephant jock strap is not ejusdem generis with those garments
listed above, the enumerated articles have no common or unifying
theme.  Since heading 6114 is a residual category, and since
there are no more specific or appropriate headings in the HTSUSA,
Customs is of the opinion that articles of novelty wearing
apparel such as the jock strap in question are classifiable
therein.

HOLDING:

     The elephant jock strap is classifiable in subheading
6114.30.3060, HTSUSA, under the provision for other garments
knitted or crocheted, of man-made fibers, other, other, men's or
boys', and are dutiable at 16.1 percent ad valorem.  The textile
category is 659.

     Pursuant to section 177.9, Customs Regulations (19 CFR
177.9), NYRLs 830911, 831612 and 835595 are modified in
conformity with the foregoing.

     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, 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,





                         Jerry Laderberg, Acting Director
                         Commercial Rulings Division