CLA-2 RR:TC:TE 960805 ASM
David A. Eisen, Esq.
Seigel, Mandell & Davidson, P.C.
One Astor Plaza
1515 Broadway
43rd Floor
New York, NY 10036-8901
RE: Petition for Review of NY B 83580 and B 83581: tariff classification of costumes
Dear Mr. Eisen:
This letter is in response to your Petition for Review submitted on behalf of your client, Teetot & Co., Inc., in which you have requested that we review and reconsider Customs New York Ruling Letters (NY) B 83580 and B 83581. The subject rulings involved the tariff classification of costumes constructed of man-made textile materials (synthetic) under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA).
FACTS:
NY B 83580, dated June 17, 1997, involved the classification of four imported costumes. The items identified as "Princess and Ballerina knit skirts" were classified in subheading 6104.53.2020, HTSUSA, which provides for "Women’s or girls’ suits, ensembles, suit-type jackets, blazers, dresses, skirts, divided skirts, trousers, bib and brace overalls, breeches and shorts (other than swimwear), knitted or crocheted: Skirts and divided skirts: Of synthetic fibers: Other: Girls’." The "Princess knit halter top" was classified under subheading 6114.30.1020, HTSUSA, which provides for "Other garments, knitted or crocheted: Of man-made fibers: Tops: Women’s or girls’." The "Ballerina woven top" was classified in subheading 6211.43.0091, HTSUSA, which provides for "Track suits, ski-suits and swimwear; other garments: Of man-made fibers: Other." It is our understanding that the four items at issue in this ruling are separately imported into the United States and are combined after importation with domestically produced items and sold as the "Fantasy Play Clothes Trunk." For the purposes of this ruling the subject items have now been identified as follows: Pink camisole (# 3611-D), pink skirt/dress (# 3611-E), white skirt/dress (# 3611-B), gold camisole (# 3611-G).
NY B 83581, dated June 17, 1997, involved the classification of a cheerleader costume. The cheerleader costume is imported into the U.S. as a set and is comprised of a top, skirt, and pompons. The cheerleader top was classified in subheading 6110.20.2075, HTSUSA, which provides for "Sweaters, pullovers, sweatshirts, waistcoats (vests) and similar articles, knitted or crocheted: Of cotton: Other: Other: Women’s or girls’." The cheerleader skirt was classified under subheading 6104.53.2020, HTSUSA, which provides for "Women’s or girls’ suits, ensembles, suit-type jackets, blazers, dresses, skirts, divided skirts, trousers, bib and brace overalls, breeches and shorts (other than swimwear), knitted or crocheted: Skirts and divided skirts: Of synthetic fibers: Other: Girls’." The pompons were classified under subheading 5808.00.9010, HTSUSA, as "... tassels, pompons and similar articles: Other: of man-made material."
A B C D
The pink camisole top (# 3611 D) is constructed by joining two ends of knit fabric with a straight stitch seam (See picture "A"). Durable hems are formed by folding over the fabric with a straight stitch on both the top and bottom edge which forms a tube that encases a narrow elastic.
The pink skirt (# 3611 E) is comprised of knit fabric which is joined by one seam to form the skirt (See picture "A"). The gathered elastic waist has a folded over hem secured by a straight stitch and the bottom hem has a raw edge with a sewn lace trim embellishment.
The gold camisole top (# 3611-G) is a woven metallic gold fabric joined by a single straight stitch seam (See picture "B"). The top and bottom hems feature folded over fabric which encases a narrow elastic with overlock stitching. Thin elastic pieces make up shoulder straps which are embellished with a sewn lace trim.
The white skirt (# 3611-B) consists of one piece of knit jersey fabric that has been joined by a straight stitch seam to form a skirt (See picture "B"). The waist has a folded over hem with a straight stitch that encases a narrow elastic. The bottom hem has a raw edge with a sewn lace embellishment.
The cheerleader top is a well constructed top which features rib knit collars and cuffs, along with a long raglan sleeve (See picture "C"). The waist has a folded over hem which encases the elastic. The cheerleader skirt is also a well constructed garment with two shaped panels of contrasting fabric which have been sewn into the front of the skirt. The bottom hem is folded over and sewn with a straight stitch and the waistband is formed by a folded over hem which encases the elastic (See picture "C"). The pompons have rubber handles and thin synthetic strips (See picture "D").
ISSUE:
Whether the costumes are festive articles of Chapter 95 or textile articles of fancy dress classifiable under Chapter 61 or 62.
LAW AND ANALYSIS:
Classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) is made in accordance with the General Rules of Interpretation (GRI's). 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's may then be applied. The Explanatory Notes (ENs) to the Harmonized Commodity Description and Coding System, which represent the official interpretation of the tariff at the international level, facilitate classification under the HTSUSA by offering guidance in understanding the scope of the headings and GRI's.
Heading 9505, HTSUSA, includes articles which are for "Festive, carnival, or other entertainment." It must be noted, however, that Note 1(e), chapter 95, HTSUSA, excludes articles of "fancy dress, of textiles, of chapter 61 or 62" from chapter 95. The EN’s to 9505, state, among other things, 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:
* * *
(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.
In interpreting the phrase "fancy dress, of textiles, of chapters 61 or 62," Customs initially took the view that fancy dress included "all" costumes regardless of quality, durability, or the nature of the item. However, Customs has reexamined its view regarding the scope of the term "fancy dress" as it relates to costumes. On November 15, 1994, Customs issued Headquarters Ruling Letter (HQ) 957318, which referred to the settlement agreement of October 18, 1994, reached by the United States and Traveler Trading. In HQ 957318, Customs stated that it had agreed to classify as festive articles in subheading 9505.90.6090, HTSUSA, costumes of a flimsy nature and construction, lacking in durability, and generally recognized as not being normal articles of apparel.
In view of the aforementioned, Customs must distinguish between costumes of Chapter 95 (festive articles), and costumes of Chapters 61 and 62 (articles of fancy dress). This can be accomplished by separately identifying characteristics in each article that would determine whether or not it is of a flimsy nature and construction, lacking in durability, and generally recognized as a normal article of apparel. We have carefully reviewed the affidavits submitted in support of the importer’s position that the subject items do not meet commercially recognized standards for wearing apparel and should not be classifiable as wearing apparel under Chapter 61 or 62, HTSUSA. However, Customs has issued several rulings which set forth highly specific examples of features which comprise a costume of Chapter 61 or 62.
HQ 957948 and 957952, both dated May 7, 1996, set forth in great detail certain styling and sewing features of costumes which exemplified the characteristics of "textile articles of fancy dress" under Chapters 61 and 62. Many of these garments featured zipper closures and abundant styling features such as a fitted bodice with darts, a clown suit with a fabric encased wire hoop to add fullness, petal shaped panels sewn into a waistline, and sheer/decorative panels sewn into the seams of costumes. HQ 959064, dated June 19, 1997, involved the classification of two children’s princess costumes, where each garment had been adorned with lace panels which were incorporated into the seams of the costume and secured with ribbon so that no raw edges were present. The necklines and slight back openings had been finished with durable bias capping so that no raw edges were exposed in an area where the garment typically receives a great deal of wear. Although some of the ornamentation had an exposed raw edge, it was only present on lace or netting which are fabrics that tend to resist runs/frays even with a raw edge.
With respect to the costumes at issue, both skirts have a raw edged bottom hem; however, the fabric is highly resistant to runs or frays. In addition, the skirt hems feature sewn lace trimming which gives the illusion of a finished hem and provides additional reinforcement making the bottom hems of the skirts quite durable. There are no raw exposed edges on the camisole tops or cheerleader top and skirt. These costumes feature folded over hems, knit collars/cuffs, and sewn embellishment which are durable finishing elements and comparable to the type of construction used in normal articles of wearing apparel. In particular, the cheerleader top and skirt have strong styling features with raglan sleeves and inserted panels in the front of the skirt. Thus, it is reasonable to conclude that these garments are comparable to articles generally recognized as apparel in that they have been designed for multiple wear and cleaning. As such, it is our view that all five garments are articles of fancy dress of Chapters 61 or 62 and therefore excluded from heading 9505, HTSUSA. See chapter 95, HTSUSA, Note 1(e).
Inasmuch as the cheerleader costume consists of two distinct garments (top/skirt), Note 13, Section XI, of the HTSUSA is applicable and provides: "Unless the context otherwise requires, textile garments of different headings are to be classified in their own headings even if put up in sets for retail sale."
Note 13 of Section XI requires that textile garments of different headings be separately classified, thus preventing classification of costumes consisting of two or more garments as sets. If a set cannot exist by application of Note 13, the articles which may be packaged with the garments must also be classified separately. As previously noted, the top and skirt of the cheerleader costume are separately classifiable as articles of wearing apparel under two different headings. Accordingly, the pompons which are packaged and imported with the cheerleader top and skirt must also be separately classified.
The pompons are constructed of durable rubber handles and metal rings securely fasten the synthetic strips. Section XI, Textiles and Textile Articles, HTSUSA, Note 1(g), states that the section does not cover: "Monofilament of which any cross-section dimension exceeds 1 mm or strip or the like (for example, artificial straw) of an apparent width exceeding 5 mm, of plastics (chapter 39), or plaits or fabrics or other basketware or wickerwork of such monofilament strip (chapter 46)." Section XI of the HTSUSA includes Chapter 54, which provides for man-made filaments. Specifically, heading 5404, covers synthetic monofilament of which no cross-sectional dimension exceeds 1 mm, provided their apparent width does not exceed 5 mm (See EN’s 5404). The strips on the subject pompons are flat and the width of the strip does not exceed 5 mm. Thus, for the purposes of tariff classification under the HTSUSA, the synthetic strips on these pompons are actually considered a textile. As such, the pompons are classifiable in Section XI, under heading 5609, HTSUSA, as an article of strip of heading 5404. This classification is based on the application of GRI 3(b) wherein goods composed of mixed or combined materials are classifiable as if they consisted wholly of the material or component which gives them their essential character. In this instance, the synthetic strips provide the essential character of the pompon.
HOLDING:
The item identified as pink camisole top (# 3611-D), is classifiable in subheading 6114.30.1020, HTSUSA, which provides for "Other garments, knitted or crocheted: Of man-made fibers: Tops: Women’s or girls’." The applicable rate of duty is 29.5 percent ad valorem under the general column one rate and the textile restraint category is 639.
The gold camisole top (# 3611-G), is classifiable in subheading 6211.43.0091, HTSUSA, which provides for "Track suits, ski-suits and swimwear; other garments: Of man-made fibers: Other." The applicable rate of duty is 16.7 percent ad valorem under the general column one rate. The textile restraint category is 659.
The pink skirt (# 3611-E) and white skirt (# 3611-B), are classifiable in subheading 6104.53.2020, HTSUSA, which provides for "Women’s or girls’ suits, ensembles, suit-type jackets, blazers, dresses, skirts, divided skirts, trousers, bib and brace overalls, breeches and shorts (other than swimwear), knitted or crocheted: Skirts and divided skirts: Of synthetic fibers: Other: Girls’." The applicable rate of duty is 16.7 percent ad valorem under the general column one rate. The textile restraint category is 642.
The cheerleader top is classifiable in subheading 6110.30.3055, HTSUSA, which provides for "Sweaters, pullovers, sweatshirts, waistcoats (vests) and similar articles, knitted
or crocheted: Of man-made fibers: Other: Other: Other: Other: Other: Women’s or girls’."
The applicable rate of duty is 33.5 percent ad valorem under the general column one rate. The textile restraint category is 639.
The cheerleader skirt is classifiable under subheading 6104.53.2020, HTSUSA, which provides for "Women’s or girls’ suits, ensembles, suit-type jackets, blazers, dresses, skirts, divided skirts, trousers, bib and brace overalls, breeches and shorts (other than swimwear), knitted or crocheted: Skirts and divided skirts: Of synthetic fibers: Other: Girls’." The applicable rate of duty is 16.7 percent ad valorem under the general column one rate. The textile restraint category is 642.
The pompons are classifiable under subheading 5609.00.3000, HTSUSA, which provides for "Articles of yarn, strip or the like of heading 5404 or 5405, twine, cordage, rope or cables, not esewhere specified or included: Of man-made fibers. The applicable rate of duty is 7.6 percent ad valorem under the general column one rate.
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.
John Durant, Director
Tariff Classification Appeals Division