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HQ 086388

April 25, 1990

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


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.


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.


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.


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.


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.


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