CLA-2 OT:RR:CTF:TCM H056821 JPJ
Kevin Maher
C-Air Customhouse Brokers
181 S. Franklin Avenue
Valley Stream, NY 11581
RE: Classification of a babies’ 100% cotton knit fabric long sleeve garment; jack-o-lantern; festive articles; Chapter 95, Legal Note 1(v)
Dear Mr. Maher:
This letter is in response to your request, dated February 25, 2009, wherein you requested a binding ruling pertaining to the classification under the Harmonized Tariff Schedule of the United States (HTSUS) of an item described as a babies’ 100% cotton knit fabric long sleeve t-shirt (“t-shirt”) in size 24 months. Your request has been forwarded by the National Commodity Specialist Division (NCSD) in New York to this office for a response. A sample of the garment was forwarded with your request. The sample will be returned.
FACTS:
Style number K181060003 is a babies’ garment. It is constructed of 100% cotton knit fabric, features a rib knit crew neckline, long hemmed sleeves, a straight hemmed bottom and comes in two designs. The first design is a mandarin orange colored garment that features appliqué work in the form of a mummy riding a skateboard. The mummy holds an overturned pumpkin bucket with a jack-o-lantern and a skull and crossbones. Above the mummy are the words, “I LOVE MY MUMMY” with some letters decorated with spiders. The second design is a black colored garment that features appliqué work in the form
of a bony rib cage, sternum and bones along the outer arm sleeves.
The item will be imported for in size 24 months.
ISSUE:
Whether the babies’ garment is classifiable as festive articles, in heading 9505, HTSUS or as knitted babies’ garments 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 6 to chapter 61, HTSUS, provides, in relevant part:
(a) The expression “babies’ garments and clothing accessories” means articles for young children of a body height not exceeding 86 centimeters; it also covers babies’ diapers.
Note 1 to Chapter 95, HTSUS, provides, in relevant part:
1. This chapter does not cover:
* * *
(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:
In accordance with Note 6 (a) to this Chapter the expression “babies’ garments and clothing accessories” applies to articles for young children of a body height not exceeding 86 cm. It also covers babies’ napkins.
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 garment be classified under subheading 9505.90.6000, HTSUS, as a festive article. However, effective February 3, 2007, Chapter 95, Note 1(v) excludes, in relevant part, apparel having a utilitarian function from Chapter 95. Despite any recognized festive designs and/or motifs printed on the garment, including the jack-o-lantern, we conclude that pursuant to Chapter 95, Note 1(v), the garment is excluded from heading 9505, HTSUS, and must be classified under heading 6111, HTSUS.
HOLDING:
In accordance with GRI I, the garment is classified in heading 6111, HTSUS. It is specifically provided for in subheading 6111.20.2000, HTSUSA as: "Babies’ garments and clothing accessories, knitted or crocheted: Of cotton; Garments, singlets and similar garments, except those imported as parts of sets”. The 2009 general, column one rate of duty is 14.9%. 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 its 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 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