CLA-2 RR:TC:TE 962441 ASM
Port Director
Port of New York
c/o Chief, Residual Liquidation and Protest Branch
6 World Trade Center, Room 761
New York, NY 10048-0945
RE: Application For Further Review; Protest 1001-98-104970
Dear Port Director:
This letter concerns protest 1001-98-104970, which was filed by the law firm, Grunfeld, Desiderio, Lebowitz & Silverman, on behalf of their client, Bentex Kiddie Corporation, where they request that we review and reconsider your classification of certain infant textile outfits under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). This protest is based on the exclusion of the subject merchandise by the port.
FACTS:
The subject merchandise consists of infants' one-piece textile outfits featuring a sewn applique on the front depicting a cow, horse, duck, dino (dinosaur), lion and cat, which have been identified under the following Bentex style numbers as follows: #0072798R-BTX (duck), #0072798R-BTX (dino), #0072798R-BTX (lion), #0072798R-BTX (cow), #0072798R-BTX (cat). Only one sample has been provided of the duck (#0072798R-BTX), with pictures having been submitted to represent the remaining styles. For the purposes of this ruling, we are assuming that all the styles now in question are constructed of the same materials and basic shape as the actual sample submitted.
The outfits are constructed of knit fabric which is 80 percent cotton and 20 percent polyester and feature an internal sound mechanism which is permanently enclosed within the decorative applique on the front of the article. Each one piece outfit has an attached hood which mimics the applique theme, i.e. , a duck bill, cat ears, etc. The hood is fitted with elastic which has been encased in the folded-over edge of the hood and secured by overlock stitching. These one piece outfits also have knit cuffs sewn to the wrists and ankles and snaps at the leg to allow for diaper changes.
The importer entered the goods as "festive articles" under 9505.90.6000, HTSUSA, which is duty free under the general column one rate. Costumes classifiable under this provision are not subject to quota or visa restraints. However, on October 30, 1998, Customs New York port rejected the entry and excluded the subject merchandise because the importer failed to present the necessary visas based on Customs determination that the merchandise was properly classifiable under the provision for "babies' garments and clothing accessories" in subheading 6209.20.5050, HTSUSA.
ISSUE:
Whether the costumes are "festive articles" of subheading 9505.90.6000, HTSUSA, or classifiable as "babies' garments" in subheading 6209.20.5050, HTSUSA, and was the exclusion of merchandise proper?
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.
The protestant asserts that the subject items are particularly stylized for Halloween and have been marketed and intended for use as infants' Halloween outfits. Based on this, protestant reasons that the outfits are prima facie classifiable under Chapter 95 pursuant to the case of Midwest of Cannon Falls, Inc., No. 96-1271, 96-1279 (CAFC 1997), which held that the articles at issue in the case were classifiable as festive articles under Chapter 95, HTSUSA.
The Midwest case is not applicable to the merchandise now at issue because the classification of textile costumes as festive articles was not considered in this decision and the opinion is silent as to the language of Note 1 (e), Chapter 95, which excludes certain textile articles from classification in the chapter. Heading 9505, HTSUSA, includes articles which are for "Festive, carnival, or other entertainment", however, Note l(e), Chapter 95, HTSUSA, specifically excludes articles of "fancy dress, of textiles, of chapter 61 or 62" from Chapter
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.
The protestant states that the term "fancy dress" is not defined in the tariff, the chapter notes, or in the Explanatory Notes. Protestant cites the case of THK America, Inc. v. United States, Slip Op. 97-34 (Ct. Int'l Trade, March 26, 1997), as supporting their contention that lexicographic sources may properly provide the appropriate guidance in interpreting the term "fancy dress." As such, the protestant has submitted the definition of “fancy dress” taken from the Little & Ives Webster Dictionary as "fantastic, or picturesque, clothes worn at a masquerade." It is argued that this term does not apply to infants' Halloween outfits.
Contrary to protestant's assertion, the EN's provide several examples of those articles of "fancy dress" which are classifiable in Chapter 95, e.g., "... masks, false ears and noses, wigs, false beards and moustaches,... and paper hats." Furthermore, in interpreting the phrase "fancy dress, of textiles, of chapters 61 or 62," Customs initially took the view that fancy dress included "all" textile 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. Thus, Customs is bound by the settlement agreement and our prior rulings to classify only those costumes which are flimsy, non-durable, and not normal articles of apparel as "festive articles" under Chapter 95, HTSUSA. See HQ 961447, dated July 22, 1998, regarding our decision on a Domestic Interested Party Petition concerning the tariff classification of textile costumes.
In order to distinguish between costumes of Chapter 95 ("festive articles") and costumes of Chapters 61 and 62 ("fancy dress"), we begin 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. HQ 957948 and 957952, both dated May 7, 1996, set forth in great detail certain styling and sewing features of costumes which exemplify the characteristics of "textile articles of fancy dress" under Chapters 61 and 62. These rulings cited numerous examples of features that were indicative of substantial and durable garments. 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 in the seams of costumes. See also, HQ 959064, dated June 19, 1997, involving the classification of two children's princess costumes.
With respect to the articles at issue, this one piece article is highly stylized in that it has an elaborate decorative applique that has been sewn with embroidery stitching to the front of the outfit so that there are no raw edges exposed. Similarly, the ornamentation on the hood has been secured with embroidery stitching and no raw edges exist. The elastic has been sewn to the hood with a double seam/overlock stitch in which the edge of the hood has been folded under and no raw edges or elastic are exposed. Knit cuffs at the wrists and ankles consist of folded material so no raw edges are exposed and resulting in cuffs that should be extremely durable. Nine sets of snaps create a leg and crotch opening for diaper changes and folded strips of fabric have been sewn to the legs to create strong panels to hold the snaps; overlock stitching secures all raw edges on the inside which reinforces the strength of the snap panels so that they will not fray with repeated opening/closing.
Based on our review of the sample and photographs submitted, and assuming that all styles share the same elements and quality of construction, 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 Chapter 61 and are therefore excluded from heading 9505, HTSUSA. See chapter 95, HTSUSA, Note l(e).
HOLDING:
The items identified as Bentex Styles #0072798R-BTX (duck), #0072798R-BTX (dino), #0072798R-BTX (lion), #0072798R-BTX (cow), #0072798R-BTX (cat), are classified under subheading 6111-20.6040, HTSUSA, as "Babies' garments and clothing accessories, knitted or crocheted: Of cotton: Other: Other: Other: Other." This provision has a duty rate of 8.4 percent ad valorem under the general column one rate. The textile restraint category is 239.
In light of the foregoing classification, it is Customs determination that the exclusion was proper because the subject merchandise has been classified in a provision requiring visas and the visas were not presented at the time of entry.
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 in the future, the protestant 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 local Customs offices.
Due to the changeable nature of the statistical annotation (the ninth and tenth digits of the classification) and the restraint (quota/visa) categories, the protestant should contact the local Customs office prior to future importations of this merchandise to determine the current status of any import restraints or requirements..
In view of the foregoing, the protest should be denied. 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 or entries in accordance with the decision must be accomplished prior to mailing the decision. Sixty days from the date of the decision, the Office of Regulations and Rulings will make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.ustreas.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
John Durant, Director
Commercial Rulings Division