CLA-2 OT:RR:CTF:TCM H056819 JPJ
Kevin Maher
C-Air Customhouse Brokers
181 S. Franklin Avenue
Valley Stream, NY 11581
RE: Classification of “Baby’s 1st Thanksgiving” bib; “My 1st Halloween” bib; Chapter 95, Legal Note 1(v)
Dear Mr. Maher:
This letter is in response to your request, dated March 18, 2009, wherein you requested a binding ruling pertaining to the classification under the Harmonized Tariff Schedule of the United States (HTSUS) of two items described as a “Baby’s 1st Thanksgiving” bib and a “My 1st Halloween” bib (collectively, “bibs”). Your request has been forwarded by the National Commodity Specialist Division (NCSD) in New York to this office for a response. A sample of style “Baby’s 1st Thanksgiving” bib was forwarded with your request.
FACTS:
Style number 102BST, “Baby’s 1st Thanksgiving”, is a bib for children. It is made of 80% cotton, 20% polyester terry knit fabric. The bib is secured at the neck by a two piece fastener with nylon hooks on one side and a mat of loops on the other. It is embroidered with the words “Baby’s 1st Thanksgiving”, and features an appliqué in the form of a turkey. The item is sized for children newborn to 6 months of age.
Style number 102GPH, “My 1st Halloween”, is a bib for children. It is made of 80% cotton, 20% polyester terry knit fabric. The bib is secured at the neck by a two piece fastener with nylon hooks on one side and a mat of loops on the other. It is embroidered with the words “My 1st Halloween”, and features appliqué work in the form of a jack-o-lantern, a bat, and candy corn. The item is sized for children newborn to 6 months of age.
ISSUE:
Whether the bibs classifiable as festive articles, in heading 9505, HTSUS, or as babies’ clothing accessories, in heading 6111, HTSUS.
LAW AND ANALYSIS:
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRI’s). GRI 1 provides that the classification of goods 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 GRIs may then be applied.
The HTSUS provisions under consideration are as follows:
6111 Babies’ garments and clothing accessories, knitted or crocheted:
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9505 Festive, carnival or other entertainment articles, including magic tricks and practical joke articles; parts and accessories thereof:
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Section XI Note 1 provides, in relevant part:
This section does not cover:
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Articles of chapter 95 (for example, toys, games, sports requisites and nets);
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Note 1 to Chapter 95, HTSUS, provides, in relevant part:
1. This chapter does not cover:
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(v) Tableware, kitchenware, toilet articles, carpets and other textile floor coverings, apparel, bed linen, table linen, toilet linen, kitchen linen and similar articles having a utilitarian function (classified according to their constituent material). 1/ See subheading 9817.95
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The Harmonized Commodity Description and Coding System Explanatory Notes ("EN’s") constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the EN’s provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127-28 (Aug. 23, 1989).
The ENs to heading 6111, provide, in relevant part:
This heading includes, inter alia, knitted or crocheted matinee coats, pixie suits, rompers, infants’ bibs, gloves, mittens and mitts, tights and babies’ bootees without an outer sole glued, sewn or otherwise affixed or applied to the upper.
The ENs to heading 9505, provide, in relevant part:
This 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) Festive decorations used to decorate rooms, tables, etc. (such as garlands, lanterns, etc.); decorative articles for Christmas trees (tinsel, coloured balls, animals and other figures, etc); cake decorations which are traditionally associated with a particular festival (e.g., animals, flags).
(2) Articles traditionally used at Christmas festivities, e.g., artificial Christmas trees, nativity scenes, nativity figures and animals, angels, Christmas crackers, Christmas stockings, imitation yule logs, Father Christmases.
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The heading also excludes articles that contain a festive design, decoration, emblem or motif and have a utilitarian function, e.g., tableware, kitchenware, toilet articles, carpets and other textile floor coverings, apparel, bed linen, table linen, toilet linen, kitchen linen.
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You have requested that the bibs be classified under subheading 9505.90.6000, HTSUS, as festive articles. However, effective February 3, 2007, Chapter 95, Note 1(v) excludes, in relevant part, apparel and similar articles having a utilitarian function from Chapter 95. Despite the turkey appliqué and the word “Thanksgiving” on the “Baby’s 1st Thanksgiving” bib and the jack-o’-lantern, bat, and candy corn appliqués and the word “Halloween” on the “My 1st Halloween” bib, we conclude that pursuant to Chapter 95, Note 1(v), the bibs are excluded from heading 9505, HTSUS.
The bibs meet the terms of heading 6111, HTSUS, which as illustrated in the EN covers infants’ bibs.
HOLDING:
In accordance with GRI I, the bibs are classified in heading 6111, HTSUS. They are specifically provided for in subheading 6111.20.6070, HTSUS as: "Babies’ garments and clothing accessories, knitted or crocheted: Of cotton: Other: Other: Other: Other”. The 2009 general, column one rate of duty is 8.1%. The textile category code is 239.
However, such classification may be affected by the current litigation in the CIT in Michael Simon Design, Inc. v. United States, Consolidated Case No. 09-00016, and Target Stores v. United States, Case No. 09-00039 (collectively, “Michael Simon II”), in which plaintiffs are challenging the implementation of Note 1(v) to Chapter 95 and Subheading 9817.95.05.
Accordingly, upon request, liquidation of entries of this merchandise shall be extended pursuant to 19 C.F.R. 159.12(a)(1)(ii) and (d)(2). A request may cover more than one entry, but each entry must be identified by number. Before an extension expires, you may, in accordance with 19 C.F.R. 159.12(d)(2), request another extension in writing, up to the three year statutory limit for extension of liquidations in 19 C.F.R. 159.12(e).
If you do not request that the liquidation of your entries be extended, or the current litigation has not been resolved at the end of the 4-year period from the date of entry, the entry shall be liquidated, with the articles classified under heading 6111, HTSUS, pursuant to Note 1(v) to Chapter 95, HTSUS.
Duty rates are provided for convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on World Wide Web at http://www.usitc.gov/tata/hts/.
A copy of this ruling letter should be attached to the entry documents filed at the time this merchandise is entered. If the documents have been filed without
a copy, this ruling should be brought to the attention of the CBP officer handling the transaction.
Sincerely,
Gail A. Hamill, Chief
Tariff Classification and Marking Branch