HQ H329794
OT:RR:CTF:FTM H329794 TSM
Mr. Liuxian Zhang
Pollywog LLC
3116 S. Mill Ave., Suite 251
Temple, Arizona 85282
RE: Tariff Classification of a Unisex Banana Costume
Dear Mr. Zhang,
This letter is in response to your request, on behalf of Pollywog LLC, dated January 11, 2023, for a binding ruling regarding the tariff classification under the Harmonized Tariff Schedule of the United States ("HTSUS") of a certain unisex banana costume.
FACTS:
The unisex banana costume at issue, identified as Style No. 20086, is a garment constructed from multiple fabric components, shaped like a banana in the front. The front of the costume, as well as the front and back of the banana head, are composed of three layers: (1) outer layer constructed from 100% polyester knit fabric; (2) middle layer composed of polyurethane foam; and (3) inner layer constructed from 100% polyester knit fabric. The polyurethane foam is securely bonded to the inner layer but is very lightly bonded to the outer layer. The back and side panels are constructed from 100% polyester knit fabric. The banana costume is designed to be pulled over the head and features an opening for the face and arms. The banana head contains three invisible zippers starting at the point of the head, which can be unzipped to resemble a peeled banana.
A sample of the unisex banana costume at issue was examined by this office and sent to a U.S. Customs and Border Protection ("CBP") Laboratory for testing. The results, reported in Laboratory Report Number NY20230226, dated May 8, 2023, show in relevant part that the banana costume is composed of 100% knit polyester fabric and 100% polyurethane cellular foam, attached to each other by a polyurethane adhesive/glue. The constituent fabrics were also determined to be sewn together with a zipper at the top of the sample around the head.
ISSUE:
What is the tariff classification of the unisex banana costume?
LAW AND ANALYSIS:
Classification decisions under the HTSUS are made in accordance with the General Rules of Interpretation ("GRIs"). 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.
GRI 2 provides in pertinent part as follows:
(b) Any reference in a heading to a material or substance shall be taken to include a reference to mixtures or combinations of that material or substance with other materials or substances. Any reference to goods of a given material or substance shall be taken to include a reference to goods consisting wholly or partly of such material or substance. The classification of goods consisting of more than one material or substance shall be according to the principles of rule 3.
GRI 3 states that, when by application of GRI 2(b) goods are prima facie classifiable under two or more headings, classification shall be effected as follows:
a) ...when two or more headings each refer to part only of the materials or substances contained in mixed or composite goods...those headings are to be regarded as equally specific in relation to those goods, even if one of them gives a more complete or precise description of the goods.
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.
c) When goods cannot be classified by reference to 3(a) or 3(b), they shall be classified under the heading which occurs last in numerical order among those which equally merit consideration.
* * *
The 2024 HTSUS provisions under consideration are as follows:
6113 Garments, made up of knitted or crocheted fabrics of heading 5903, 5906 or 5907
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6114 Other garments, 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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Note 1(h) to Section XI provides in relevant part:
This section does not cover:
* * *
(h) Woven, knitted or crocheted fabrics, felt or nonwovens, impregnated, coated, covered or laminated with plastics, or articles thereof, of Chapter 39;
* * *
(t) Articles of Chapter 95 (for example, toys, games, sports requisites and nets)
* * *
Note 2 to Chapter 39 provides in relevant part:
This Chapter does not cover:
(p) Goods of section XI (textiles and textile articles)
* * *
Note 3 to Chapter 56 provides in relevant part:
Headings 5602 and 5603 cover respectively felt and nonwovens, impregnated, coated, covered or laminated with plastics or rubber whatever the nature of these materials (compact or cellular).
* * *
Note 2 to Chapter 59 provides:
Heading 5903 applies to:
a) Textile fabrics, impregnated, coated, covered or laminated with plastics, whatever the weight per square meter and whatever the nature of the plastic material (compact or cellular), other than:
1) Fabrics in which the impregnation, coating or covering cannot be seen with the naked eye (usually Chapters 50 to 55, 58 or 60); for the purpose of this provision, no account should be taken of any resulting change of color;
2) Products which cannot, without fracturing, be bent manually around a cylinder of a diameter of 7 mm, at a temperature between 15C and 30C (usually Chapter 39);
3) Products in which the textile fabric is either completely embedded in plastics or entirely coated or covered on both sides with such material, provided that such coating or covering can be seen with the naked eye with no account being taken of any resulting change of color (Chapter 39);
4) Fabrics partially coated or partially covered with plastics and bearing designs resulting from these treatments (usually Chapters 50 to 55, 58 or 60);
5) Plates, sheets or strip of cellular plastics, combined with textile fabric, where the textile fabric is present merely for reinforcing purposes (Chapter 39); or
6) Textile products of heading 5811.
b) Fabrics made from yarn, strip or the like, impregnated, coated, covered or sheathed with plastics, of heading 5604.
* * *
Note 3 to Chapter 59 provides:
For the purposes of heading 5903, "textile fabrics laminated with plastics" means products made by the assembly of one or more layers of fabrics with one or more sheets or film of plastics which are combined by any process that bonds the layers together, whether or not the sheets or film of plastics are visible to the naked eye in the cross-section.
* * *
Note 1 to Chapter 95 provides in relevant part:
This Chapter does not cover:
e) Fancy dress of textiles, of Chapter 61 or 62; sports clothing and special articles of apparel of textiles, of Chapter 61 or 62, whether or not incorporating incidentally protective components such as pads or padding in the elbow, knee or groin areas (for example, fencing clothing or soccer goalkeeper jerseys)
* * *
The Harmonized Commodity Description and Coding System Explanatory Notes ("ENs") constitute the "official interpretation of the Harmonized System" at the international level. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989). 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 id.
EN 1 to Section XI provides in relevant part:
This Section does not cover:
(h) Woven, knitted or crocheted fabrics, felt or nonwovens, impregnated, coated, covered or laminated with plastics, or articles thereof, of Chapter 39;
* * *
(t) Articles of Chapter 95 (for example, toys, games, sports requisites and nets)
* * *
General EN to Chapter 39, provides in relevant part:
Plastics and textile combinations
Wall or ceiling coverings which comply with Note 9 to this Chapter are classified in heading 39.18. Otherwise, the classification of plastics and textile combinations is essentially governed by Note 1 (h) to Section XI, Note 3 to Chapter 56 and Note 2 to Chapter 59.
The following products are also covered by this Chapter:
a) Felt impregnated, coated, covered or laminated with plastics, containing 50% or less by weight of textile material or felt completely embedded in plastics;
b) Textile fabrics and nonwovens, either completely embedded in plastics or entirely coated or covered on both sides with such material, provided that such coating or covering can be seen with the naked eye with no account being taken of any resulting change of colour;
c) Textile fabrics, impregnated, coated, covered or laminated with plastics, which cannot, without fracturing, be bent manually around a cylinder of a diameter of 7 mm, at a temperature between 15 C and 30 C;
d) Plates, sheets and strip of cellular plastics combined with textile fabrics (as defined in Note 1 to Chapter 59), felt or nonwovens, where the textile is present merely or reinforcing purposes.
* * *
EN 2 to Chapter 59 provides:
Heading 59.03 applies to:
a) Textile fabrics, impregnated, coated, covered or laminated with plastics, whatever the weight per square metre and whatever the nature of the plastic material (compact or cellular), other than:
1) Fabrics in which the impregnation, coating or covering cannot be seen with the naked eye (usually Chapters 50 to 55, 58 or 60); for the purpose of this provision, no account should be taken of any resulting change of colour;
2) Products which cannot, without fracturing, be bent manually around a cylinder of a diameter of 7 mm, at a temperature between 15 C and 30 C (usually Chapter 39);
3) Products in which the textile fabric is either completely embedded in plastics or entirely coated or covered on both sides with such material, provided that such coating or covering can be seen with the naked eye with no account being taken of any resulting change of colour (Chapter 39);
4) Fabrics partially coated or partially covered with plastics and bearing designs resulting from these treatments (usually Chapters 50 to 55, 58 or 60);
5) Plates, sheets or strip of cellular plastics, combined with textile fabric, where the textile fabric is present merely for reinforcing purposes (Chapter 39); or
6) Textile products of heading 58.11;
b) Fabrics made from yarn, strip or the like, impregnated, coated, covered or sheathed with plastics, of heading 56.04.
* * *
EN 3 to Chapter 59 provides:
For the purposes of heading 59.03, "textile fabrics laminated with plastics" means products made by the assembly of one or more layers of fabrics with one or more sheets or film of plastics which are combined by any process that bonds the layers together, whether or not the sheets or film of plastics are visible to the naked eye in the crosssection.
* * *
EN 1 to Chapter 95 provides in relevant part:
This Chapter does not cover:
e) Fancy dress of textiles, of Chapter 61 or 62; sports clothing and special articles of apparel of textiles, of Chapter 61 or 62, whether or not incorporating incidentally protective components such as pads or padding in the elbow, knee or groin areas (for example, fencing clothing or soccer goalkeeper jerseys)
* * *
EN 59.03 provides in relevant part as follows:
* * *
This heading also covers "textile fabrics laminated with plastics" as defined in Note 3 to this Chapter.
The laminated fabrics of this heading should not be confused with fabrics which are simply assembled in layers by means of a plastic adhesive (generally fall in Chapters 50 to 55).
* * *
EN VIII to GRI 3(b) provides the following guidance in regard to identifying the essential character of composite goods consisting of different materials:
The factor which determines essential character will vary as between different kinds of goods. It may, for example, be determined by the nature of the material or component, its bulk, quantity, weight or value, or by the role of a constituent material in relation to the use of the goods.
* * *
The banana costume under consideration is constructed from multiple components. Specifically, the front and head areas of the costume are composed of 100% polyester knit fabric and 100% polyurethane cellular foam, attached to each other by a polyurethane adhesive/glue, while the back and side panels are composed solely of 100% polyester knit fabric. Accordingly, tariff classification of each of the components must be considered.
In view of the fact that the front and head of the banana costume at issue consist of a combination of textile and plastic materials, we must first determine whether these components are classified in Chapter 39, HTSUS. In this regard, we note that the EN to Chapter 39 provides in relevant part that the following categories of plastics and textile products are classified in Chapter 39: (1) felt impregnated, coated, covered or laminated with plastics; (2) textile fabrics and nonwovens, either completely embedded in plastics or entirely coated or covered on both sides with plastics that can be seen with the naked eye; (3) textile fabrics that are coated or laminated with plastics and cannot be bent manually around a cylinder of 7 mm in diameter; and (4) plates, sheets and strip of cellular plastics combined with textile fabrics, felt or nonwovens, where the textile is present merely for reinforcing purposes. [1] Upon review, we find that the front and head of the banana costume at issue are not constructed from any of the four categories of products referenced in the EN to Chapter 39, and are therefore not classified in Chapter 39, HTSUS.
The EN to Chapter 39 also provides in relevant part that the classification of plastics and textile combinations is essentially governed by Note 1(h) to Section XI, Note 3 to Chapter 56, and Note 2 to Chapter 59. Note 1(h) to Section XI provides that this section does not cover woven, knitted or crocheted fabrics, felt or nonwovens, impregnated, coated, covered or laminated with plastics, or articles thereof, of Chapter 39. As discussed above, the front and head of the banana costume are not classified in Chapter 39. Therefore, Note 1(h) to Section XI does not exclude them from classification in Section XI.
Note 3 to Chapter 56 provides in relevant part that headings 5602 and 5603 cover felt and nonwovens, impregnated, coated, covered or laminated with plastics or rubber whatever the nature of these materials (compact or cellular). In this regard, we note that the referenced headings are not applicable because the front and head areas of the banana costume at issue are not constructed of felt or nonwovens. Rather, the textile portion of the front and head areas consists of knitted polyester fabric. Accordingly, classification in headings 5602, HTSUS, or 5603, HTSUS, is not appropriate.
Note 2 to Chapter 59 and EN 2 to Chapter 59 provide in relevant part that heading 5903, HTSUS, applies to textile fabrics, impregnated, coated, covered or laminated with plastics, whatever the weight per square meter and whatever the nature of the plastic material (compact or cellular). While the referenced notes also provide that certain fabrics are not covered by heading 5903 and lists specific exceptions, none of those exceptions apply to laminated fabrics. Laminated fabrics are specifically addressed in Note 3 to Chapter 59 and EN 3 to Chapter 59, which state that for the purposes of heading 5903, "textile fabrics laminated with plastics" means products made by the assembly of one or more layers of fabrics with one or more sheets or film of plastics which are combined by any process that bonds the layers together, whether or not the sheets or film of plastics are visible to the naked eye in the cross-section. Consistent with the CBP laboratory report, the front and head areas of the banana costume are composed of 100% polyester knit fabric and 100% polyurethane cellular foam, attached to each other by a polyurethane adhesive/glue. Accordingly, at issue is whether the polyester knit fabric and the polyurethane cellular foam are bonded together within the meaning of Note 3 and EN 3 to Chapter 59. We note that because the term "bonded" is not defined by the HTSUS or the relevant notes, we have consulted dictionaries to ascertain its meaning. [2] Dictionary.com provides the following definition of the term "bonded" in reference to textiles: "Textiles made of two layers of the same fabric or of a fabric and a lining material attached to each other by a chemical process or adhesive." [3] Similarly, the Merriam-Webster Dictionary defines "bonded" as "composed of two or more layers of the same or different fabrics held together by an adhesive." [4] Consistent with the referenced definitions, we find that the polyester knit fabric and the polyurethane cellular foam are bonded together within the meaning of Note 3 and EN 3 to Chapter 59. Therefore, the polyester knit fabric and polyurethane cellular foam, comprising the front and head of the banana costume, are described in heading 5903, HTSUS, which provides in relevant part for textile fabrics laminated with plastics. [5] As such that are described in heading 5903, HTSUS, the front and head of the banana costume are classified in heading 6113, HTSUS, which provides for "Garments, made up of knitted or crocheted fabrics of heading 5903, 5906 or 5907."
The side and back panels of the banana costume are composed solely of 100% polyester knit fabric. Knitted or crocheted articles of clothing are classified in Chapter 61, HTSUS. Upon review, we find that the side and back panels of the banana costume are provided for in Chapter 61, HTSUS, and specifically in heading 6114, HTSUS, which covers "Other garments, knitted or crocheted," because they are not provided for in any of the earlier headings of Chapter 61.
Consistent with the foregoing, we conclude that the banana costume at issue is comprised of two types of materials: (1) 100% polyester knit fabric that is laminated with polyurethane foam (the front and head areas of the banana costume), which is classified in heading 6113, HTSUS; and (2) 100% polyester knit fabric, not laminated with polyurethane foam (the back and side panels of the banana costume), which is classified in heading 6114, HTSUS. Accordingly, the banana costume cannot be classified solely on the basis of GRI 1 because it is a composite good consisting of different materials classifiable in different headings and no single heading provides for it. Consequently, the remaining GRIs are applied, in order. GRI 2(a) relates to articles presented unassembled or disassembled and, as the banana costume is imported in a finished condition, GRI 2(a) is not applicable in this case. As a result, GRI 2(b) is applied. GRI 2(b), in pertinent part, states that: "[t]he classification of goods consisting of more than one material or substance shall be according to the principles of rule 3." Moving to rule 3, GRI 3(a) states that "[t]he heading which provides the most specific description shall be preferred to headings providing a more general description." However, when two or more headings each refer to part only of the materials ... contained in ... composite goods ..., those headings are to be regarded as equally specific in relation to those foods, even if one of them gives a more complete or precise description of the goods." As GRI 3(a) fails to determine that classification, GRI 3(b) is applied. GRI 3(b) states, in relevant part, that: "composite goods consisting of different materials ... which cannot be classified by reference to GRI 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."
When classifying articles consisting of different materials pursuant to GRI 3(b), CBP reviews each of the factors set forth in EN VIII to GRI 3(b). Applying these factors to the banana costume at issue, we find that the essential character is imparted by the polyester knit fabric that is laminated with polyurethane foam. The laminated fabric occupies a significant surface area and covers the front and head areas of the costume. Moreover, the laminated fabric helps the costume to maintain its shape - the shape of a banana - while the costume is being worn. In fact, the shape of a banana is the key feature, which makes it possible for the wearer to pretend to be a banana while wearing the costume. In contrast, the polyester knit fabric featured on the sides and back of the costume is not laminated and does not hold the shape of a banana. Therefore, we find that the role of the fabric with polyurethane foam in relation to the costume's use is more significant than the role of the fabric not laminated with polyurethane foam. Accordingly, we find that the essential character is imparted by the polyester knit fabric laminated with polyurethane foam, classified in heading 6113, HTSUS. [6]
Based on the foregoing, we conclude that the banana costume at issue is classified in heading 6113, HTSUS, and specifically in subheading 6113.00.90, HTSUS, which provides for "Garments, made up of knitted or crocheted fabrics of heading 5903, 5906 or 5907: Other."
HOLDING:
By application of GRI 3(b), we find that the banana costume at issue is classified in heading 6113, HTSUS, and specifically in subheading 6113.00.90, HTSUS, which provides for "Garments, made up of knitted or crocheted fabrics of heading 5903, 5906 or 5907: Other." The 2024 general, column one rate of duty is 7.1% ad valorem.
Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided online at: https://hts.usitc.gov.
Please note that 19 C.F.R. 177.9(b)(1) provides that "[e]ach ruling letter is issued on the assumption that all of the information furnished in connection with the ruling request and incorporated in the ruling letter, either directly, by reference, or by implication, is accurate and complete in every material respect. The application of a ruling letter by a Customs Service field office to the transaction to which it is purported to relate is subject to the verification of the facts incorporated in the ruling letter, a comparison of the transaction described therein to the actual transaction, and the satisfaction of any conditions on which the ruling was based."
A copy of this ruling letter should be attached to the entry documents filed at the time the goods are 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,
Sarah Kafka, Chief Food, Textiles and Marking Branch
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[1] Note 10 to Chapter 39 provides that "[i]n headings 3920 and 3921, the expression 'plates, sheets, film, foil and strip' applies only to plates, sheets, film, foil and strip (other than those of Chapter 54) and to blocks of regular geometric shape, whether or not printed or otherwise surface-worked, uncut or cut into rectangles (including squares) but not further worked (even if when so cut they become articles ready for use)."
[2] When a tariff term is not defined by the HTSUS or its legislative history, "the term's correct meaning is its common meaning." See Mita Copystar Am. v. United States, 21 F.3d 1079, 1082 (Fed. Cir. 1994). The common meaning of a term used in commerce is presumed to be the same as its commercial meaning. See Simod Am. Corp. v. United States, 872 F.2d 1572, 1576 (Fed. Cir. 1989). To ascertain the common meaning of a term, a court may consult "dictionaries, scientific authorities, and other reliable information sources" and "lexicographic and other materials." See C.J. Tower & Sons v. United States, 673 F.2d 1268, 1271 (CCPA 1982); Simod, 872 F.2d at 1576.
[3] Bonded, Dictionary.com, https://www.dictionary.com/browse/bonded (last visited April 17, 2024).
[4] Bonded, Merriam-Webster, https://www.merriam-webster.com/dictionary/bonded
(last visited April 17, 2024).
[5] We note that polyurethane foam is a plastic material which, if imported separately, would be classified in Chapter 39, HTSUS. See Headquarters Ruling Letter ("HQ") 087649, dated October 26, 1990 (classifying polyurethane foam imported in rolls in heading 3921, HTSUS); and New York Ruling Letter ("NY") N324627, dated March 8, 2022 (classifying polyurethane foam strips in heading 3921, HTSUS).
[6] In your request for a ruling, you also inquired whether the banana costume at issue may be classified in heading 9505, HTSUS, which provides for "Festive, carnival or other entertainment articles, including magic tricks and practical joke articles; parts and accessories thereof." In this regard, please note that Note 1(e) to Chapter 95 excludes "fancy dress, of textiles, of chapter 61 or 62" from classification in Chapter 95. 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. See Rubie's Costume Company v. United States, 337 F.3d 1350 (Fed. Cir. 2003). 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. The banana costume at issue is not of a flimsy nature or construction because it features multiple zippers and is constructed with durable safety stitches. Therefore, classification in heading 9505, HTSUS, is not appropriate.