CLA-2 CO:R:C:T 088575 CMR

Mr. Ken August
Fun World
80 Voice Road
Carle Place, New York 11514

RE: Revocation of DD 858882 of January 3, 1991; Classification of babies' costume hats and bibs; festive articles

Dear Mr. August:

This ruling is in response to your letter of January 29, 1991, requesting reconsideration of DD 858882 of January 3, 1991. The ruling dealt with the classification of a babies' costume hat and bib set. The ruling classified the bib in subheading 6117.80.0035, HTSUSA, as an other made up clothing accessory. The hat was classified in subheading 9505.90.6000, HTSUSA, as an other festive, carnival or entertainment article. We received four sample sets with your request.

FACTS:

The style at issue is style 9750. Four samples of the style were received for review. The samples are of a clown costume, a pumpkin costume, a ghost costume and a cat costume. Each costume consists of a hat and bib made of 100 percent polyester brushed knit fabric. The hats and bibs are matched as to size, marketed as a unit, and color coordinated. The sets are sized for infants 0 to 24 months.

The clown costume consists of a bib with capping and tie ends, and a hat. The hat is made of two fabric pieces of different colors. It is cone-shaped with a pompon on top and capping at the bottom. The bib has a screen print clown face on the front.

The pumpkin costume consists of a bib with capping and tie ends and a hat. The hat is bowl-shaped with a thin elastic chin

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strap and fabric on top to give the appearance of a stem and leaves. The bib has a screen print Halloween pumpkin face on the front.

The ghost costume consists of a bib with capping and tie ends, and a hat. The hat is hood-shaped with capping around the front and tie ends. The hat has two nonwoven inserts at the top and a small screen print face and the word "Boo!". The bib has a screen print face and hands and the word "Boo!" on the front.

The cat costume consists of a bib with capping and tie ends, and a hat. The hat is hood-shaped with capping around the front and tie ends. Fabric inserts are sewn in at the top to give the appearance of ears. The bib has a screen print cat face with whiskers on the front.

It is expected that this merchandise will be imported from Taiwan.

ISSUE:

Was the classification in DD 858882 of January 3, 1991, correct?

LAW AND ANALYSIS:

Classification of goods under the HTSUSA is governed by the General Rules of Interpretation (GRIs). GRI 1 provides that "classification shall be determined according to the terms of the headings and any relative section or chapter notes, and provided such headings or notes do not otherwise require, according to [the remaining GRIs taken in order]."

Customs has ruled on merchandise similar in all material respects to that which is at issue herein. In HRL 088410 of April 18, 1991, we ruled that infants' two-piece Halloween costume sets consisting of hats and bibs were classified as sets in heading 9505, HTSUSA, which provides for festive articles. The following analysis was the basis for that classification.

The articles in the set, the hat and bib, if separately classified would, prima facie, fall in headings 6505, HTSUSA, and 6111, HTSUSA, respectively. The Explanatory Notes, which are the official interpretation of the HTSUS at the international level, provide in GRI 3 that "goods put up in sets for retail sale" are goods which consist of at least two different articles which are prima facie classifiable in different headings, consist of articles put up together to meet a particular need or carry out a specific activity, and are put up in a manner suitable for direct sale to users without repacking.

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The hat and bib costumes at issue here meet the requirements for consideration as "goods put up in sets for retail sale." The hats and bibs are prima facie classifiable in different headings. They are put together to carry out a specific activity, i.e., form a costume for an infant. Lastly, they are packaged together in a manner suitable for direct sale to the consumer.

GRI 3(a) provides, inter alia, that when two or more headings each refer to part only of the items in a set put up for retail sale, the headings are to be regarded as equally specific. Goods put up in sets for retail sale which cannot be classified by application of GRI 3(a) are classified as if they consisted of the component which gives them their essential character. GRI 3(b).

As the hats and bibs are classifiable in different headings, classification cannot be determined by application of GRI 3(a). According to that GRI each heading must be considered equally specific. Therefore, classification must be accomplished by application of GRI 3(b), i.e., according to the component which imparts the essential character of the set.

The Explanatory Notes indicate that the factor which determined essential character will vary among different types of goods and that various factors may be considered such as bulk, quantity, weight, value or role of a component in relation to the use of the goods.

In HRL 088410 it was decided that the hat played a far greater role in establishing the identity of the costume and therefore imparted the essential character of the set. In the instant case, we believe the bibs and hats share equally in establishing the identity of the costumes and therefore classification should be determined by utilizing GRI 3(c). That GRI dictates that when classification cannot be achieved by resort to GRI 3(a) or 3(b), classification should be according to the heading which appears last in the tariff among those which equally merit consideration.

Before applying GRI 3(c) however, consideration should be given to the classification of the hats of style 9750. Hats and headgear are generally classified in Chapter 65 of the HTSUSA. However, Chapter 65, Note 1(c), excludes doll hats, other toy hats, or carnival articles of Chapter 95. The instant sets may be defined for tariff purposes as festive or carnival articles of fancy dress. While Chapter 95, Note 1(e) excludes fancy dress of textiles of Chapter 61 or 62, the hats or headpieces of style 9750 are classifiable in Chapter 65, and therefore not subject to the exclusion. Accordingly, the hats are excluded from Chapter 65 as toy or carnival articles and classified in Chapter 95.

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Since we cannot determine the essential character of the hat and bib sets, and the hats are classifiable in Chapter 95 which appears later in the tariff than Chapter 61, style 9750 is classified according to the classification for the hats in Chapter 95.

HOLDING:

Style 9750, consisting of babies' costume hats and bibs, is classified according to the classification of the hats in the sets in subheading 9505.90.6000, HTSUSA, which provides for other festive, carnival or other entertainment articles. The goods are dutiable at 3.1 percent ad valorem.

In order to insure uniformity in Customs classification of this merchandise and eliminate uncertainty, we are revoking DD 858882 of January 3, 1991, to reflect the above classification effective with the date of this letter. However, if after your review of this ruling letter, you disagree with the legal basis for our decision, we invite you to submit any arguments you might have with respect to this matter for our review. Any submission you wish to make should be received within 30 days of the date of this letter.

This notice to you should be considered a revocation of DD 858882 under 19 CFR 177.9(d)(1). It is not to be applied retroactively to DD 858882 (19 CFR 177.9(d)(2)) and will not, therefore, affect past transactions for the importation of your merchandise under that ruling. However, for the purposes of future transactions in merchandise of this type, DD 858882 will not be valid precedent. We recognize that pending transactions may be adversely affected by this modification in that current contracts for importation arriving at a port subsequent to this decision will be classified pursuant to it. If such a situation arises, you may, at your discretion, notify this office and may apply for relief from the binding effects of this decision as may be warranted by the circumstances. However, please be advised that in some instances involving import restraints, such relief may require separate approvals from other government agencies.


Sincerely,

John Durant, Director
Commercial Rulings Division