CLA-2 OT:RR:CTF:TCM H126876 EGJ
Katie Richtsmeier
Costumes Galore, Inc.
1415 1st Avenue
Mankato, MN 56001
RE: Reconsideration of NY N104396, dated June 4, 2010; Classification of Adult Bunny Mascot Costume
Dear Ms. Richtsmeier:
This is in response to your letter dated July 16, 2010, in which you requested reconsideration of New York Ruling Letter (NY) N104396, dated June 4, 2010, as it pertains to the classification of an adult bunny mascot costume (the costume) under the Harmonized Tariff Schedule of the United States (HTSUS).
FACTS:
You submitted a sample identified as the “Bunny Mascot” costume (Style # FUN 2050). The costume consists of a jumpsuit/coverall, a large headpiece representing a rabbit’s head, mitts (paws) and slippers (feet) constructed of 100 percent knit pile faux fur fabric. The jumpsuit/coverall has long sleeves and legs that are unfinished (raw) at the wrists and ankles, a finished neckline and no waist. The costume is sewn together with tight single stitch interior seams except for a pink front insert panel that features two rows of tight single straight stitches. It also features a rear hook and loop strip closure, stylized overlay chest piece, padded sewn-on “cotton” tail, and a separate panel that runs from the crotch down the inner leg to the ankles. According to your website, the costume sells for $249.99 and rents for $140 in the United States. See www.costumesgalore.net.
On April 29, 2010, you wrote to U.S. Customs and Border Protection (CBP) to request a tariff classification ruling for the costume. In response, CBP issued NY N104396 which classified the costume under heading 6114, HTSUS, as other knitted or crocheted garments. Your letter dated July 16, 2010, requests that CBP reconsider and revoke NY N104396. You assert that the correct classification for the costume is under heading 9505, HTSUS, as a festive article.
ISSUE:
Is the costume classified in heading 6114, HTSUS, as other knitted or crocheted garments, or under heading 9505, HTSUS, as a festive article?
LAW AND ANALYSIS:
Classification under the HTSUS is made in accordance with the General Rules of Interpretation. 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 2 through 6 may then be applied in order.
The applicable HTSUS provisions at issue are as follows:
6505 Hats and other headgear, knitted or crocheted, or made up from lace, felt or other textile fabric, in the piece (but not in strips), whether or not lined or trimmed …
* * *
6114 Other garments, knitted or crocheted . . .
* * *
9505 Festive, carnival or other entertainment articles, including magic tricks and practical joke articles; parts and accessories thereof . . .
* * *
Note 1(t) to Section XI, which includes Chapters 50-63, provides that:
This section does not cover:
(t) Articles of chapter 95 (for example, toys, games, sports requisites and nets) …
* * *
Note 1(e) to Chapter 95 states that:
This chapter does not cover:
(e) Sports clothing or fancy dress, of textiles, of chapter 61 or 62 …
* * *
When goods are, prima facie, classifiable in two or more headings, they must be classified in accordance with GRI 3. GRI 3(b) provides as follows:
(b) Mixtures, composite goods consisting of different materials or made
up of different components, and goods put up in sets for retail sale,
which cannot be classified by reference to 3(a), shall be classified
as if they consisted of the material or component which gives them
their essential character, insofar as this criterion is applicable.
* * *
The Explanatory Notes (EN) to the Harmonized Commodity Description and Coding System represent the official interpretation of the tariff at the international level. While neither legally binding nor dispositive, the ENs 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, 35128 (August 23, 1989).
EN(IX) to Rule 3(b) provides the following:
…
(IX) For the purposes of this Rule, composite goods made up of different components shall be taken to mean not only those in which the components are attached to each other to form a practically inseparable whole but also those with separable components, provided these components are adapted one to the other and are mutually complementary and that together they form a whole which would not normally be offered for sale in separate parts…As a general rule, the components of these composite goods are put up in a common packing.
* * *
You assert that the costume is classifiable under heading 9505, HTSUS, which provides for festive articles. Although Note 1(t) to Section XI (Chapters 50 to 63) generally excludes articles of Chapter 95, Note 1(e) to Chapter 95 specifically excludes “fancy dress, of textiles, of chapter 61 or 62” from classification in Chapter 95. Therefore, if the bunny costume is fancy dress of chapter 61 or 62, the costume cannot be classified as a festive article under heading 9505, HTSUS.
In Rubie’s Costume Company v. United States, the U.S. Court of Appeals for the Federal Circuit (CAFC) addressed the Note 1(e) exclusion for articles of fancy dress. 337 F.3d 1350 (Fed. Cir. 2003) (Rubie’s Costume Co.). The CAFC held that when “imported textile costumes are of a flimsy nature and construction, lacking in durability and generally not recognized as normal articles of wearing apparel,” they are classifiable as festive articles under heading 9505, HTSUS. Id. at 1360. Moreover, the CAFC agreed that articles of fancy dress are determined by “such factors as the extent of styling features such as zippers, inset panels, darts or hoops, and whether the edges of the materials [are] left raw or finished.” Id. at 1357.
Based upon the CAFC’s decision in Rubie’s Costume Co., 337 F.3d at 1357, CBP has further defined the factors which distinguish flimsy costumes from fancy dress costumes in its Informed Compliance Publication “Classification of Textile Costumes under the HTSUS” (June 2008) (the ICP). In the ICP, CBP addresses the four major distinguishing factors: styling, construction, finishing touches and embellishments. In your request for reconsideration, you apply these four factors to the costume and conclude that the costume is flimsy and thus classifiable as a festive article.
A costume’s styling includes its tailoring details and those design elements that are generally sewn into the costume. Rubie’s Costume Co., 337 F.3d at 1357. Examples of flimsy styling include: simple pull-on designs with no front or back openings, no zippers, inset panels, darts, tucks or other elements that create a fitted shape. The ICP states that examples of well-made styling include: darts, tucks and multiple shaped panels sewn into the seams and/or body of the garment. You state that the subject costume has little or no styling, a simple pull-on design, and no tailoring elements that would create a fitted shape. We disagree with your assessment. The costume is very well styled, with several panels tightly sewn together to form the body, pink underbelly, arms and legs of the bunny. The costume also has a large fluffy tail tightly sewn onto the backside. The costume is not tailored because it is an adult, one-size fits all costume.
A costume’s construction relates to the strength of its stitching and the durability of the costume’s edges. Rubie’s Costume Co., 337 F.3d at 1357 citing to HQ 957948, dated May 7, 1996. Both HQ 957948 and the ICP state that flimsy construction includes: loose stitching at the neck, waist, and seams as well as any thin elastic sewn directly to the fabric with a single straight stitch, or a single layer collar with a raw edge. Examples of well-made construction include tight stitching and finished edges. You assert that the costume’s construction is flimsy because the mitts include a thin elastic sewn on with a single straight stitch. The mitts also have raw, unfinished edges. However, the coverall’s neck, the slippers and the head gear all have finished edges. Moreover, the costume’s stitching is a tight single straight stitch and not a loose single straight stitch. The coverall’s overlay chest piece is attached with two rows of tight single straight stitches.
Finishing touches include the adequacy of the costume’s closure. See HQ 957948. Flimsy costumes have closures which gap and fail to provide adequate modesty and coverage to the wearer. You assert that this a flimsy costume because the back of the costume has a hook and loop tab closure at the back which does not provide adequate coverage to the wearer. Yet the back of the costume includes several such closures that are closely spaced together. When worn, the costume has little or no gapping at the back. Moreover, a coverall-style garment is often worn over other clothing.
An embellishment is a minor component of a costume which is generally attached after the costume is essentially complete. See HQ 957948. You state that there are no embellishments on the costume. We agree that there are no embellishments. However, embellishments are just one factor of many to consider when analyzing costumes.
In summary, the subject costume has many finished edges and features multiple panels that are tightly sewn together. The subject costume is suitable for repeated wear and sells for $249.99. The closures in the back of the coverall are closely spaced and create minimal gapping. All of the aforementioned factors lead us to conclude that the costume is not flimsy, but is rather a well-made article of fancy dress classifiable under Chapter 61 or 62. As such, the costume is precluded from classification in Chapter 95 by Note 1(e). Therefore, the bunny costume is not excluded from classification in Section XI by application of Note 1(t) to Section XI.
In this case, the subject costume consists of two or more components which are prima facie classifiable in separate headings. The bunny’s head is prima facie classifiable as head gear under heading 6505, HTSUS, and the coverall is prima facie classifiable as a garment under heading 6114, HTSUS. Since the components are classifiable under separate headings, we must proceed to GRI 3.
EN (IX) to GRI 3(b) states that a composite good is a good with separate components which are adapted one to the other and are mutually complementary. Together, the components form a whole which would not normally be offered for sale in separate parts. The subject costume satisfies this definition of a composite good because it contains a separate head piece, coverall, mitts (paws) and slippers (feet). While these components of the costume are separate pieces, they work together to create a bunny costume. According to information provided by Costumes Galore, Inc., these components are put up together in common packing for retail sale. For classification purposes, the subject costume is a composite good and must be classified under GRI 3(b). Moreover, CBP has previously classified a bunny costume with a body suit and separate hands, feet and head gear as a composite good. See NY J80046, dated January 28, 2003.
Under GRI 3(b), CBP must classify a composite good as if it consists of the material or component which gives the good its essential character. CBP has consistently ruled that a costume which includes a garment, headgear and other components obtains its essential character from the garment. See Headquarters Ruling Letter (HQ) 959545, dated June 2, 1997, NY J80046, and NY N098795, dated April 23, 2010. Therefore, the entire costume is classified according to the coverall’s classification, under heading 6114, HTSUS, as a garment. This comports with prior CBP rulings, which have held that similar bunny costumes were articles of fancy dress classifiable under heading 6114, HTSUS. See NY J80046 and NY N098795.
HOLDING:
In accordance with GRI 1 (Note 1(e) to Chapter 95) and GRI 3(b), the subject merchandise, which you have identified as the Bunny Mascot” costume (Style # FUN 2050), is classified in subheading 6114.30.30, HTSUS, which provides for “Other garments, knitted or crocheted: of man-made fibers: other.” The 2012 column one, general rate of duty will be 14.9 percent ad valorem.
Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUSA and the accompanying duty rates are provided on the world wide web at www.usitc.gov.
EFFECT ON OTHER RULINGS:
(NY) N104396, dated June 4, 2010, is hereby affirmed.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division