CLA-2 OT:RR:CTF:TCM H237067 EGJ
John A. Bessich, Esq.
Follick & Bessich
33 Walt Whitman Road
Suite 310
Huntington Station, NY 11746
RE: Classification of an Adult Size Santa Claus Costume
Dear Mr. Bessich:
This is in response to your request of June 20, 2012, for a binding ruling on the tariff classification of an adult size Santa Claus costume under the Harmonized Tariff Schedule of the United States (HTSUS). You submitted this ruling request on behalf of Rubie’s Costume Company (Rubie’s Costume), the company that imports the subject merchandise. You submitted your ruling request to the U.S. Customs and Border Protection (CBP), Office of International Trade’s National Commodity Specialist Division (NCSD). NCSD forwarded your ruling request to our office. This letter responds to the comments that you raised during a meeting with members of our office on October 23, 2012, as well as to your supplement dated December 12, 2012.
FACTS:
You submitted a sample identified as the “Premier Plush Nine Piece Santa Suit” (the Santa costume) (Style No. 23349). The Santa costume consists of a red top, red trousers, a red hat, a black belt with a metal buckle, white gloves, black shoe covers, a white beard, a white wig and a Santa sack that are packaged together for retail sale in a zippered plastic bag. The top, pants and hat are all constructed of 73% acrylic/27% polyester knit pile fabric. The top and pants have sewn-in care labels informing the consumer that both garments are “Dry Clean Only”. A picture of the subject merchandise is provided below:
The top is fully lined with woven satin fabric. It has a double-layer collar constructed of white faux fur fabric with a snap closure on the front part of the collar. The top features a full front opening secured by a zipper closure. A left-over-right, overlapping flap of white faux fur fabric conceals the front zipper area. This faux fur fabric is secured at the top and bottom with a snap closure. The top has long sleeves with turned edges, trimmed with white faux fur fabric cuffs. It features a straight cut hemmed bottom, trimmed with the same white faux fur fabric. The top has self-fabric double-layered belt loops and well-made interior seams. The top may be worn as a jacket over other clothing or as a shirt over undergarments. We believe it will be principally used as a shirt worn over an undershirt and a pillow or some other type of stuffing to achieve the Santa Claus image.
Both the top and the pants have tags sewn into them which state “Dry Clean Only.” The pants have a woven satin lining and side seam pockets with turned, hemmed edges. They also feature a tunneled elasticized waist with wide elastic measuring approximately 1 ¾ inches in width and interior seams with tight, overlock stitching. Although the ankle edge is sewed with a loose, overlock stitch, the pants will be tucked into the boot tops, therefore obscuring the edge.
The Santa costume also consists of a number of smaller items. The Santa wig consists of a textile hairnet covered in long, curly white hairs. The hairs are made up of long plastic fibers. The mesh of the hairnet is clearly visible through the hairs of the wig. The hairnet and the hairs are joined using a single straight stitch. The Santa beard includes a white, woven textile material cut into a semi-circle. The bottom of the textile semi-circle is frayed. The white, curly plastic hairs of the beard are attached to the textile semi-circle with a single straight stitch. On each side of the beard is a textile-covered elastic loop. These loops wrap around the wearer’s ears to secure the beard in place.
The polyester knit gloves are constructed of 100% polyester knit fabric. The Santa sack is a bag that measures approximately thirty inches in width by thirty-six inches in length. It is constructed of 100% polyester knit pile fabric and features a braided drawstring cord.
ISSUE:
Is the entire Santa costume classifiable as a festive article under heading 9505, HTSUS? If not, what is the tariff classification of each of the costume’s components?
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:
3926 Other articles of plastics and articles of other materials of headings 3901 to 3914 …
* * *
4202 Trunks, suitcases, vanity cases, attaché cases, briefcases, school satchels, spectacle cases, binocular cases, camera cases, musical instrument cases, gun cases, holsters and similar containers; traveling bags, insulated food or beverage bags, toiletry bags, knapsacks and backpacks, handbags, shopping bags, wallets, purses, map cases, cigarette cases, tobacco pouches, tool bags, sports bags, bottle cases, jewelry boxes, powder cases, cutlery cases and similar containers, of leather or of composition leather, of sheeting of plastics, of textile materials, of vulcanized fiber or of paperboard, or wholly or mainly covered with such materials or with paper …
* * *
6101 Men's or boys' overcoats, carcoats, capes, cloaks, anoraks (including ski-jackets), windbreakers and similar articles, knitted or crocheted, other than those of heading 6103 …
* * *
6103 Men’s or boys’ suits, ensembles, suit-type jackets, blazers, trousers, bib and brace overalls, breeches and shorts (other than swimwear), knitted or crocheted …
* * *
6105 Men’s or boys’ shirts, knitted or crocheted …
* * *
6114 Other garments, knitted or crocheted . . .
* * *
6116 Gloves, mittens and mitts, knitted or crocheted …
* * *
6704 Wigs, false beards, eyebrows and eyelashes, switches and the like, of human or animal hair or of textile materials; articles of human hair not elsewhere specified or included …
* * *
9505 Festive, carnival or other entertainment articles, including magic tricks and practical joke articles; parts and accessories thereof . . .
* * *
Note 2(y) to Chapter 39 provides that:
This chapter does not cover:
(y) Articles of chapter 95 (for example, toys, games, sports equipment) …
* * *
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 14 to Section XI provides that:
Unless the context otherwise requires, textile garments of different headings are to be classified in their own headings even if put up in sets for retail sale. For the purposes of this note, the expression “textile garments” means garments of headings 6101 to 6114 and headings 6201 to 6211 …
* * *
Note 2(l) to Chapter 42 provides that:
This chapter does not cover:
(l) Articles of chapter 95 (for example, toys, games, sports equipment) …
* * *
Note 3(a) to Chapter 61 provides, in pertinent part, that:
For the purposes of headings 6103 and 6104:
…
All of the components of a “suit” must be of the same fabric construction, color and composition; they must also be of the same style and of corresponding or compatible size. However, these components may have piping (a strip of fabric sewn into the seam) in a different fabric …
* * *
Note 9 to Chapter 61 provides, in pertinent part, that:
Garments of this chapter designed for left over right closure at the front shall be regarded as men’s or boys’ garments, and those designed for right over left closure at the front as women’s or girls’ garments. These provisions do not apply where the cut of the garment clearly indicates that it is designed for one or other of the sexes …
* * *
Note 1(e) to Chapter 67 states that:
This chapter does not cover:
(e) Toys, sports equipment or carnival articles (chapter 95) …
* * *
Notes 1(d), 1(e) and 1(u) to Chapter 95 state that:
This chapter does not cover:
(d) Sports bags or other containers of heading 4202, 4303 or 4304;
(e) Sports clothing or fancy dress, of textiles, of chapter 61 or 62 …
…
(u) Racket strings, tents or other camping goods, or gloves, mittens and mitts (classified according to their constituent material) …
* * *
Applying GRI 1, we must first determine if the entire Santa costume is classifiable under one heading. Section XI (Chapters 50 to 63) covers textiles and textile articles. Note 1(t) to Section XI states that articles of Chapter 95 are excluded from classification in Section XI. You assert that the Santa costume is classifiable under heading 9505, HTSUS, which provides for “festive, carnival or other entertainment” articles.
However, 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 Santa costume consists of fancy dress of chapter 61 or 62, we cannot classify the entire costume as a festive article under heading 9505, HTSUS.
In Rubie’s Costume Company v. United States, the 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.). At issue was CBP Headquarters Ruling Letter (HQ) 959545, dated June 2, 1997. In HQ 959545, CBP classified five different Halloween costumes: the "Witch of the Webs" (a child size knit polyester black dress with raw edged points just below the knee), the "Abdul, Sheik of Arabia" (an adult size ankle length sheath of knit polyester with some unfinished edges), the "Pirate Boy" (a child size costume made up of separate top and pants of knit polyester with raw edged points at sleeves and waist), the "Witch" (a child size long sleeved black dress of knit polyester with raw edged points) and the "Cute and Cuddly Clown" ( a one piece knit jumpsuit with substantial finish work). Id. at 1352 n. 2. CBP had classified all of these Halloween costumes in heading 9505, HTSUS, as festive articles except for the Cute and Cuddly Clown costume. CBP classified the clown costume under heading 6209, HTSUS, which provides, in pertinent part, for “Babies’ garments…” Id. at 1352.
With regard to Note 1(e) to Chapter 95, the CAFC stated in Rubie’s Costume Co. that:
Because the HTSUS offers no definition for the term ‘fancy dress,’ the Court of International Trade correctly consulted the common (dictionary) meaning of the term. See E.M. Chems. v. United States, 920 F.2d 910, 913 (Fed. Cir. 1990). As the Court of International Trade found, the relevant definition of ‘fancy dress’ is ‘a costume (as for a masquerade or party) departing from conventional style and usu[ally] representing a fictional or historical character, an animal, the fancy of the wearer, or a particular occupation.’ Rubie's Costume Co. v. United States, 196 F. Supp. 2d 1320, 1327 (Ct. Int’l Trade 2002) (citing Webster's Third New International Dictionary 822 (1986)). That the term ‘fancy dress,’ as found by the Court of International Trade, includes costumes is plain enough; however, a reading of the exclusion in Note 1(e) to Chapter 95, HTSUS, that focuses solely on the term ‘fancy dress’ and turns a blind eye to the immediately following words ‘of textiles, of chapter 61 or 62’ construes the term fancy dress in disregard of the context of the exclusion as a whole … Thus, based on the common meaning of ‘fancy dress’ and the ensuing language in Note 1(e), this court concludes that the exclusion to Chapter 95, HTSUS, encompasses textile costumes that are classifiable as ‘wearing apparel’ under Chapter 61 or 62. Id. at 1356-1357.
Thus, in Rubie’s Costume Co., the CAFC set forth a multi-prong test to determine whether a textile costume is excluded by Note 1(e) to Chapter 95. The CAFC also set forth a multi-prong test to determine whether a textile costume is not excluded by the Note. 337 F.3d at 1357-1358 (emphasis added). The CAFC stated that “the exclusion to Chapter 95, HTSUS, encompasses textile costumes that are classifiable as ‘wearing apparel’ under Chapter 61 or 62.” Id. at 1357. The CAFC held that wearing apparel is identified 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. Conversely, the CAFC stated that “imported textile costumes … of a flimsy nature and construction, lacking in durability and generally not recognized as normal articles of wearing apparel,” could be classified in heading 9505, HTSUS. Rubie’s Costume Co., 337 F.3d at 1358 (emphasis added). Thus, the CAFC asserted that the tariff classification of a festive costume depends upon these multi-prong tests. Id.
You assert that CBP has erroneously relied upon “flimsiness” as the sole basis for classifying textile costumes. For support, you cite to New York Ruling Letter (NY) N178037, dated August 22, 2011. In NY N178037, CBP classified a well-made Santa Claus costume in heading 6210, HTSUS, which provides for “Garments, made up of fabrics of heading 5602, 5603, 5903 or 5907…” In the ruling, CBP quoted the entire multi-prong test set forth in Rubie’s Costume Co. 337 F. 3d at 1357-1358. CBP determined that the Santa Claus costume was a well-made (wearing apparel) textile costume (fancy dress) classifiable in Chapter 62. As such, CBP properly applied each prong of the multi-prong test to determine that the Santa Claus costume was excluded from Chapter 95 by Note 1(e) to Chapter 95.
Based upon the CAFC’s decision in Rubie’s Costume Co., 337 F.3d at 1357, CBP has clarified which factors distinguish flimsy costumes from wearing apparel 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.
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: two layers of fabric, ruffles, pleats, tucks, darts, drapes, bias cut, raglan sleeves, puff sleeves, mutton sleeves, double layer collars or belts, and extensive gathering; a collar with multiple layers and/or a facing fabric. The Santa costume’s top is fully lined with woven satin fabric. It has a double-layer collar constructed of white faux fur fabric. The top has self-fabric double-layered belt loops and well-made interior seams. The Santa costume’s pants also have a woven satin lining.
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. All of the Santa costume top’s edges are tightly stitched and well finished. The top has a double layer collar. The Santa pants have pockets with turned, tightly hemmed edges. While the ankle edge of the Santa pants consists of a single straight stitch, the pants will be tucked into the boot tops, therefore obscuring the edge. According to the ICP, a flimsy costume has poorly finished edges which are visible when the costume is worn. The flimsy edges around the pants’ ankles are not visible when the entire costume is worn.
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. The Santa top features a full front opening secured by a zipper closure. A left-over-right, overlapping flap of white faux fur fabric with a snap closure covers the front zipper area. As such, the wearer’s torso will be completely covered by the Santa top. The pants have a tunnelized, elasticized waist which prevents the pants from falling off of the wearer.
An embellishment is a minor component of a costume which is generally attached after the costume is essentially complete. See HQ 957948. The Santa costume does not include any embellishments. However, embellishments are just one factor of many to consider when analyzing costumes.
In summary, the Santa costume’s pants and top both feature multiple panels that are tightly sewn together. The pants and top are suitable for repeated wear and can only be dry cleaned. The Santa top has a zipper running down the front with a white faux fur trim which snaps over the zipper. The wearer’s torso is completely covered by the top. All of the top’s edges are finished. With regard to the pants, the only unfinished edge is along the ankle of the pants. However, this edge will be hidden when the wearer pulls on the boots. Taking all of these factors into account, we conclude that the Santa costume’s top and pants are not flimsy. Their construction is consistent with well-made articles of apparel.
Note 9 to Chapter 61 states, in pertinent part, that “garments of this chapter designed for left over right closure at the front shall be regarded as men’s or boys’ garments.” The Santa costume’s top has a strip of faux fur which runs down the front of the top and conceals the zipper closure. This strip of faux fur is secured by two snaps and is designed for left over right closure. As such, we find that the Santa costume is classifiable as a men’s garment.
Heading 6103, HTSUS, provides for men’s suits. However, Note 3(a) to Chapter 61 states that men’s suits must be of the same fabric construction, color and composition. Here, the Santa costume top has faux fur trim around the collar, around the cuffs and covering the length of the front zipper. The Santa pants do not have any faux fur trim. As such, the Santa top and pants have a different composition and cannot be classified together as a men’s suit. Rather, the Santa top is classified as a men’s shirt of heading 6105, HTSUS, and the Santa pants are classified as men’s trousers under heading 6103, HTSUS. This determination is consistent with CBP rulings on similar Santa costumes. See HQ 084129, dated July 6, 1989, and NY F85377, dated May 11, 2000. Accordingly, the subject merchandise is “fancy dress …of textiles, of Chapters 61 or 62” per Note 1(e) to Chapter 95 and is thus not covered under the scope of any heading in that Chapter, including heading 9505, HTSUS.
Moreover, Note 14 to Section XI states that “textile garments of different headings are to be classified in their own headings even if put up in sets for retail sale … for the purposes of this note, the expression ‘textile garments’ means garments of headings 6101 to 6114 and 6201 to 6211.” The top is classified under heading 6105, HTSUS, and the pants are classified under heading 6103, HTSUS. As such, the top and the pants are “textile garments” as defined by Note 14 to Section XI; they cannot be classified together as a retail set. Note 14 to Section XI also prevents all of the Santa costume’s components from being classified together as a retail set.
Still applying GRI 1, we must determine the tariff classification of the remaining Santa Claus costume items: the gloves, the sack, the wig and the beard. Note 1(u) to Chapter 95 precludes gloves from classification in Chapter 95. The Santa costume’s gloves are prima facie classifiable as knit gloves under heading 6116, HTSUS. As such, they are precluded from classification in Chapter 95.
Turning to the Santa costume’s sack, Note 2(l) to Chapter 42 excludes goods of Chapter 95. However, Note 1(d) to Chapter 95 excludes goods of heading 4202, HTSUS, which provides for, inter alia, traveling bags, knapsacks, backpacks and similar containers of textile materials. Thus, if the sack is classifiable in heading 4202, HTSUS, it cannot be classified in Chapter 95. In this instance, the subject textile drawstring bag (i.e. the Santa sack) is prima facie classifiable under heading 4202, HTSUS. See generally Totes, Inc. v. United States, 18 C.I.T. 919 (1994), aff’d by Totes, Inc. v. United States, 69 F.3d 495 (Fed. Cir. 1995); Processed Plastic Company v. United States, 29 C.I.T. 1129 (2005); see also HQ 084129, dated July 6, 1989 (classifying a drawstring duffle “Santa sack” in heading 4202, HTSUS). Accordingly, it is excluded from Chapter 95 by Note 1(d) and is properly classified under heading 4202, HTSUS.
We now turn to the Santa wig and beard. Heading 6704, HTSUS, provides for wigs and false beards of textile materials. However, Note 1(e) to Chapter 67 states that carnival articles of Chapter 95 are excluded from classification in Chapter 67. If the Santa wig and beard are classifiable in heading 9505, HTSUS, as “carnival articles,” they cannot be classified in Chapter 67.
The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System at the international level. While not legally binding on the contracting parties, and therefore not dispositive, the ENs provide a commentary on the scope of each heading of the Harmonized System and are thus useful in ascertaining the classification of merchandise under the system. CBP believes the ENs should always be consulted. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).
EN 95.05(A)(3) provides, in pertinent part, that:
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:
…
(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.
EN 67.04(1) provides, in pertinent part, that:
This heading covers:
(1) Made up articles of postiche of all kinds manufactured of human or animal hair or of textile materials. These articles include wigs, beards, eyebrows and eyelashes, switches, curls, chignons, moustaches and the like. They are usually of high-class workmanship intended for use either as aids to personal toilet or for professional work (e.g., theatrical wigs).
This category does not include:
(a) Dolls’ wigs (heading 95.03).
(b) Carnival articles, generally of inferior material and finish (heading 95.05).
EN 95.05(A)(3) specifically lists wigs and false beards as being examples of festive or carnival articles. EN 67.04(1) states that beards and wigs classified under this heading are usually of “high-class workmanship.” The Santa wig and beard are not articles of high class workmanship. The hairnet of the wig is clearly visible through the hairs. The bottom of the beard’s supporting textile material is frayed. Both the wig and the beard are secured using a single, straight stitch. As such, the Santa wig and beard are classified under heading 9505, HTSUS.
HOLDING:
In accordance with GRI 1 (Note 9 to Chapter 61 and Note 1(e) to Chapter 95), the Santa costume’s top is classified in subheading 6105.20.20, HTSUS, which provides for "Men’s or boys’ shirts, knitted or crocheted: Of man-made fibers: Other …" The 2013 column one, general rate of duty will be 32 percent ad valorem.
In accordance with GRI 1 (Note 9 to Chapter 61 and Note 1(e) to Chapter 95), the Santa costume’s pants are classified in subheading 6103.43.15, HTSUS, which provides for "Men’s or boys’… trousers …breeches and shorts (other than swimwear), knitted or crocheted: Of synthetic fibers: Trousers, breeches and shorts: Other: Trousers: Men’s …” The 2013 column one, general rate of duty will be 28.2 percent ad valorem.
In accordance with GRI 1 (Note 1(u) to Chapter 95), the Santa costume’s gloves are classified in subheading 6116.93.94, HTSUS, which provides for "Gloves, mittens and mitts, knitted or crocheted: Of synthetic fibers: Other: Other …" The 2013 column one, general rate of duty will be 18.6 percent ad valorem.
In accordance with GRI 1 (Note 1(d) to Chapter 95), the Santa costume’s sack is classified in subheading 4202.92.30, which provides, in pertinent part, for "[T]raveling bags…knapsacks and backpacks, handbags, shopping bags…sports bags…of textile materials…or wholly or mainly covered with such materials…: Other: With outer surface of sheeting of plastic or of textile materials: Travel, sports and similar bags: With outer surface of textile materials: Other…” The 2013 column one, general rate of duty will be 17.6 percent ad valorem.
In accordance with GRI 1 (Note 1(e) to Chapter 67), the Santa costume’s beard and wig are classified in subheading 9505.90.6000, HTSUS, which provides for "Festive, carnival or other entertainment articles, including magic tricks and practical joke articles; parts and accessories thereof: Other: Other." The rate of duty will be free.
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.
Sincerely,
Ieva K. O’Rourke, Chief
Tariff Classification and Marking Branch