CLA-2 RR:TC:TE 959545 ASM
Mr. V. James Adduci, II
Ms. Susan E. Bernstein
Adduci, Mastriani & Schaumberg, L.L.P.
1140 Connecticut Avenue, N.W.
Washington, D.C. 20036
RE: Request for Information
Dear Mr. Adduci:
This letter is in response to your request for the tariff classification of five costumes under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). It is our understanding that you have made this request on behalf of the Rubie’s Costume Co., Inc., pursuant to Section 516 of the Tariff Act of 1930, as amended (19 U.S.C. 1516) and Title 19 Code of Federal Regulations Section 175.1 (19 C.F.R. 175) governing petitions by domestic interested parties.
Five samples have been submitted with this request and are identified as follows: Witch of the Webs (No. 11062), Abdul Sheik of Arabia (No. 15020), Pirate Boy (No. 12013), Cute and Cuddly Clown (No. 11594), and Witch (No. 11005). All items are produced from man-made textile materials (synthetic).
The Witch of the Webs costume, No. 11062, is a child’s size knit polyester black dress that falls in raw edged points just below the knee. The long sleeves also have raw edged points and are printed with a white spider web design on a purple background. There is no back opening or closure; the neck is gathered with elastic. The costume also includes a belt comprised of black ties which have been stitched to a large shaped foam pad covered with the same white and purple material used for the sleeves. The entire belt consists of an unfinished raw edge.
The Abdul Sheik of Arabia costume, No. 15020, is an adult size ankle length sheath of knit polyester comprised of one center black panel with the sides and back of the costume constructed of blue, purple, and white striped fabric. The neck has been finished with bias tape which extends to a tie closure. The back has a raw edged slit opening. The long sleeves consist of black fabric trimmed with the same striped fabric used in the body of the costume. Both the cuffs and the dress have unfinished raw edges. Included with the sheath are a raw edged square of black fabric to be fitted over the head with a coordinating blue, purple, and white striped head band designed to fit securely around the head with elastic, and a coordinating striped raw edged sash for the waist.
The Pirate Boy, No. 12013, is a child size costume made up of separate top and pants of knit polyester. The short sleeved red and white top has raw edged points at the sleeves and waist. The neck is finished with red bias tape and there are no openings or closures at the back or neck. The black pants have elastic at the waist and fall just below the knee in raw edged points. The set also includes a long raw edged sash and red and white striped head band.
The Cute and Cuddly Clown, No. 11594, comes in sizes ranging from newborn, infant, and toddler. This costume is a one piece knit polyester jumpsuit with long sleeves made up of alternating pieces of yellow fabric and white fabric printed with red polka dots. The neck has a sewn in elastic with a gathered ruffle of white fabric which has been trimmed with blue bias edging. There are elastic gathers at the wrists and ankles which have also been finished with blue bias edging. Two blue pompons have been sewn to the front. The costume also includes a pointed hat consisting of two panels of coordinating yellow and red polka dotted fabric. The hat has been trimmed with blue bias edging and a blue pompon has been glued to the point of the hat.
The Witch costume, No. 11005, consists of a child’s size long sleeved black dress of knit polyester with raw edged points on the sleeves and skirt. The neck is finished with bias tape extending to form the tie closure and there is a raw edged slit at the front. Also included with the dress is a black pointed witch’s hat that has been designed with a stiff circular brim edged with wire that is encased and secured to the hat by black bias tape. A thin black braided belt with tassels on either end can be secured around the waist.
ISSUE:
Whether the costumes are festive articles of Chapter 95 or textile articles of fancy dress classifiable under Chapter 61 or 62.
LAW AND ANALYSIS:
Classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) is made in accordance with the General Rules of Interpretation (GRI's). The systematic detail of the harmonized system is such that virtually all goods are classified by
application of GRI 1, that is, 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 GRI's may then be applied. The Explanatory Notes (ENs) to the Harmonized Commodity Description and Coding System, which represent the official interpretation of the tariff at the international level, facilitate classification under the HTSUSA by offering guidance in understanding the scope of the headings and GRI's.
Heading 9505, HTSUSA, includes articles which are for "Festive, carnival, or other entertainment." It must be noted, however, that Note 1(e), chapter 95, HTSUSA, excludes articles of "fancy dress, of textiles, of chapter 61 or 62" from chapter 95. The EN’s to 9505, state, among other things, that the 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.
In interpreting the phrase "fancy dress, of textiles, of chapters 61 or 62," Customs initially took the view that fancy dress included "all" costumes regardless of quality, durability, or the nature of the item. However, Customs has reexamined its view regarding the scope of the term "fancy dress" as it relates to costumes. On November 15, 1994, Customs issued Headquarters Ruling Letter (HQ) 957318, which referred to the settlement agreement of October 18, 1994, reached by the United States and Traveler Trading. In HQ 957318, Customs stated that it had agreed to classify as festive articles in subheading 9505.90.6090, HTSUSA, costumes of a flimsy nature and construction, lacking in durability, and generally recognized as not being normal articles of apparel.
In view of the aforementioned, Customs must distinguish between costumes of Chapter 95 (festive articles), and costumes of Chapters 61 and 62 (articles of fancy dress). This can be accomplished by separately identifying characteristics in each article that would determine whether or not it is of a flimsy nature and construction, lacking in durability, and generally recognized as a normal article of apparel. Specifically, HQ 957948 and 957952, both dated May 7, 1996, set forth in great detail certain styling and sewing features of costumes which exemplified the characteristics of "textile articles of fancy dress" under Chapters 61 and 62. Many of these garments featured zipper closures and abundant styling features such as a fitted bodice with darts, a clown suit with a fabric encased wire hoop to add fullness, petal shaped panels sewn into a waistline, and sheer/decorative panels sewn into the seams of costumes.
The Witch of the Webs costume has no significant styling features in that it is a simple pull-on design that consists of a straight loose fitting dress with long sleeves. The gathered neck has been fitted with a strong elastic. This elastic is encased by the fabric at the neckline which has been folded over the elastic with the raw edge turned under at the stitch seam so that no raw edges are exposed. However, all other edges (sleeves, skirt) are raw and unfinished,
which in terms of durability, is a poor choice for this knit fabric because it appears to run easily. It would not be reasonable to conclude that such fabric could withstand the multiple wear and cleaning that would be expected of a normal article of wearing apparel.
Abdul Sheik of Arabia is also a costume with no significant styling features because it is a long, loose-fitting sheath that has been designed with a slit raw-edged back and tie closure. Although the neckline has been fitted with a type of bias tape that is usually quite strong, all other edges including the back opening, sleeves, and skirt are raw and subject to runs and fraying. Again, the use of a raw edge on such fabric could not reasonably be expected to withstand multiple wear and cleaning.
The Pirate Boy top and pants feature a simple pull-on design with no back/front openings or closures. The neckline on the top has been finished with a bias edging. The gathered waist on the pants has elastic which is encased by the fabric in such a way that the material has been folded over the elastic and the raw edge turned under at the stitch seam so that no raw edges are exposed. All remaining edges on the top and pants are raw and unfinished on a knit fabric which runs/frays easily. This limits the possibility of multiple wear and cleaning for the costume.
The Cute and Cuddly Clown costume is well-constructed and has a substantial amount of finishing work (i.e., the sewing used to construct the article) which is represented by the application of bias edging on the collar ruffle, wrist and ankle. The elastic used to gather the material at the wrists and ankles appears substantial and securely sewn directly to the fabric. The neckline features a ruffle which has been sewn directly to the neckline so that no raw edging is exposed at the neck. The elastic was then slipped under the ruffle and a straight stitch seam applied to secure the elastic to the neckline. The result is a durable neckline featuring two sets of seams and no raw edging. In view of the fact that the costume has no raw edges and durable bias tape at the collar, wrists, and ankles, it is reasonable to conclude that the costume is comparable to a normal article of wearing apparel in terms of multiple wear and cleaning.
The Witch costume, No. 11005, features a simple straight dress style with a tie closure and raw edged slit front. The neckline has been edged with bias tape but the raw jagged edges at the sleeve and skirt are constructed of fabric which runs/frays easily. Such a costume would not withstand multiple wear and cleaning.
Four of the costumes, identified as: Witch of the Webs (No. 11062), Abdul Sheik of Arabia (No. 15020), Pirate Boy (No. 12013), and Witch (No. 11005), are comparable in construction and durability. In assessing each costume as a whole, the amount of finishing and quality of construction is such that the articles are flimsy in nature and lacking in durability. Thus, it is reasonable to conclude that these costumes are not excluded from heading 9505, HTSUSA, because they are not classifiable as articles of fancy dress of chapters 61 or 62.
It is important to note that costumes packaged with accessories may be classified as sets by application of GRI 3(b) according to the item in the set from which the set derives its essential character. With respect to the various belts and hats included with the Witch of the Webs (No. 11062), Abdul Sheik of Arabia (No. 15020), Pirate Boy (No. 12013), and Witch (No. 11005), GRI 3(b) is applicable when goods are, prima facie, classifiable under two or more headings, and have been put up in sets for retail sale. GRI 3(b) states that the goods "shall be classified as if they consisted of the material or component which gives them their essential character." In this case, the belts, hats, and items they are packaged with are governed by GRI 3(b) because these items are retail packaged as accessories with costumes and each item in the set is classifiable under a separate heading. Customs believes that the essential character of costumes with accessories is generally imparted by the costume; otherwise, you would merely have a collection of accessory items.
The costume identified as, Cute and Cuddly Clown (No. 11594), is neither flimsy in construction, nor lacking in durability. The neckline has been finished with a strong double seam and the collar is edged with durable bias tape. No raw edges exist on this costume and the fabrics selected have been made durable by these finishing elements. Thus, it is reasonable to conclude that this costume is comparable to articles generally recognized as apparel in that it has been designed for multiple wear and cleaning. As such, it is our view that this garment is an article of fancy dress of Chapter 62 and therefore excluded from heading 9505, HTSUSA. See chapter 95, HTSUSA, Note 1(e). By application of GRI 3(b), the clown hat which is retail packaged with this costume is also classifiable under Chapter 62 because the essential character of the set is determined by the garment.
HOLDING:
If imported into the United States, the costumes identified as Witch of the Webs (No. 11062), Abdul Sheik of Arabia (No. 12013), Pirate Boy (No. 12013), Witch (No. 11005) and the accessories retail packaged with each set, would be classified under subheading 9505.90.6090, HTSUSA, which provides for "Festive, carnival or other entertainment articles, including magic tricks and practical joke articles; parts and accessories thereof: Other: Other: Other." The provision is duty free under the general column one rate.
The Cute and Cuddly Clown (No. 11594) garment and hat, would be properly classified under subheading 6209.30.3040, HTSUSA, which provides for "Babies’ garments and clothing accessories: Of synthetic fibers: Other; Other: Other." The applicable rate of duty for this provision is 16.7 percent ad valorem and the textile restraint category is 239.
If you disagree with the above classification and/or duty rate, you may file a petition pursuant to 19 U.S.C. 1516 (in this regard, see 19 C.F.R. 175.11 and 19 C.F.R. 175.12) contesting that classification and/or duty rate. Please note, that in filing a petition, you must include a description of the merchandise, the appraised value, classification or rate of duty that you believe proper, and the reasons for this belief. See 19 U.S.C. 1516 (a)(1)(A)(B)(C).
Sincerely,
John Durant, Director
Tariff Classification Appeals Division