CLA-2 OT:RR:CTF:TCM 024421 CKG
Category: Classification
Tariff No. 4201.00.60
Mr. Michael Roybal
RoybalGlobal P.C.
4801 Lovers Lane
Dallas, Texas 75209
Re: Pet Costumes; Reconsideration of NY N019717
Dear Mr. Roybal:
This is in response to your letter of February 14, 2007, requesting the reconsideration of New York Ruling Letter (NY) N019717, dated December 13, 2007. In NY N019717, CBP classified four pet costumes in heading 4201 of the Harmonized Tariff Schedule of the United States (HTSUS) , which provides for “Saddlery and harness for any animal (including traces, leads, knee pads, muzzles, saddle cloths, saddle bags, dog coats and the like), of any material.”
FACTS
The merchandise at issue was described as follows in NY N019717:
The submitted samples were identified as Item #1060988 Construction Dog Pet
Costume, Item #1060929 Police Dog Pet Costume, Item #1061100 Pet Headband(Dog Bone) and Item #1061127 Pet Headband (Arrow).
Item #1060988 consists of a two-piece plastic coated polyester cape and hat dog costume. The cape has three plastic coated foam tools (hammer, wrench and screwdriver) sewn on to the tool belt area. The cape can be fastened to a dog by two strips of plastic coated polyester containing Velcro located on the underside of the cape.
Item #1060929 consists of a two piece plastic coated polyester cape and hat dog
costume. The cape has a removable plastic coated foam pair of handcuffs held in place by a belt loop and a plastic coated foam gun which is sewn into a plastic
holster. The cape can be fastened to a dog by two strips of plastic coated polyester containing Velcro located on the underside of the cape.
Item #1061100 consists of a fabric/felt covered headband containing two halves
of a plastic fabric/felt covered dog bone to be worn by a dog as a novelty headband.
Item #1061127 consists of a fabric/felt covered headband containing two halves
of a plastic fabric/felt covered arrow (arrowhead and nock) to be worn by a dog as a novelty headband.
ISSUE
Whether the subject pet costumes are classifiable as saddlery and harnesses of heading 4201, HTSUS or festive articles of heading 9505, HTSUS.
LAW AND ANALYSIS
Classification under the HTSUS is 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.
The HTSUS provisions under consideration are as follows:
4201: Saddlery and harness for any animal (including traces, leads, knee pads, muzzles, saddle cloths, saddle bags, dog coats and the like), of any material:
4201.00.30: Dog leashes, collars, muzzles, harnesses and similar dog equipment
4201.00.60: Other
* * * * *
9505: Festive, carnival or other entertainment articles, including magic tricks and practical joke articles; parts and accessories thereof:
9505.90: Other:
9505.90.60: Other……
* * * * *
Note 1(l) to Chapter 42, HTSUS, provides:
This chapter does not cover…Articles of chapter 95 (for example, toys, games, sports equipment).
Note 1(e) to Chapter 95, HTSUS, provides:
This chapter does not cover…Sports clothing or fancy dress, of textiles, of chapter 61 or 62
Note 1(v) to Chapter 95 states as follows:
This chapter does not cover…
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).
* * * * *
The Explanatory Notes (EN) to the Harmonized Commodity Description and Coding System represent the official interpretation of the tariff at the international level. 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 T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
EN 42.01 provides, in pertinent part:
This heading covers equipment for all kinds of animals, of leather, composition leather, furskin, textiles or other materials.
These goods include, inter alia, saddles and harness (including reins, bridles and traces) for saddle, draught and pack animals, knee pads, blinkers and boots for horses, decorated trappings for circus animals, muzzles for any animal, collars, leads and trappings for dogs or cats, saddle cloths, saddle cushions and saddle bags, horse blankets specially shaped for the purpose, coats for dogs.
EN 95.05 provides:
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.
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.
* * * * *
You request classification of the subject merchandise under heading 9505,
HTSUS. Specifically you argue that neither EN (A)(3) to heading 9505, HTSUS, nor the Chapter Notes to Chapter 95, HTSUS, specifically Chapter Notes 1(e) and 1(v), exclude the pet costumes from classification in heading 9505, HTSUS. You also argue that classification in heading 4201, HTSUS, is precluded insofar as heading 4201, HTSUS, is limited to equipment for animals. You contend the instant pet costumes serve no functional purpose other than for entertainment on Halloween or Christmas.
Pursuant to Chapter 42, Note 1(l), if the subject pet costumes are classifiable as festive articles of heading 9505, HTSUS, they are excluded from classification in Chapter 42.
We agree that the instant merchandise is not covered by the scope of Note 1(e) to Chapter 95, HTSUS, which is limited to goods of fancy dress of Chapters 61 or 62, HTSUS. Though the pet costumes are similar to fancy dress of Chapter 61 or 62, HTSUS, resolution of the instant matter is more properly addressed by Note 1(v) to Chapter 95, HTSUS.
The subject costumes provide protection against the elements; the coating on the polyester surface is water-resistant, and both samples include a hood/hat. The costumes thus provide additional comfort and protection in cold or wet weather. As such, they are not purely decorative. They are similar to apparel and have a utilitarian function. The pet costumes are thus excluded from classification in Chapter 95, HTSUS. Because the instant costumes are not festive articles, Note 1(l) to Chapter 42 does not apply.
The express terms of heading 4201, HTSUS, provide for dog coats and the like. Insofar as pet costumes are not identified by name in heading 4201, HTSUS, we must consider whether they are esjudem generis (of a similar kind) with the goods of heading 4201, HTSUS. The Court of International Trade has stated as follows with regard to esjudem generis comparisons: “As applicable to classification cases, ejusdem generis requires that the imported merchandise possess the essential characteristics or purposes that unite the articles enumerated eo nomine [by name] in order to be classified under the general terms.” Totes, Inc. v. United States, 18 CIT 919, 865 F. Supp. 867, 871 (1994), aff’d. 69 F. 3d 495 (Fed. Cir. 1995).
The articles listed in heading 4201, HTSUS, represent a broad range of animal products all of which are worn on or by an animal and include articles worn by animals for adornment and protection. The instant pet costumes, similar to dog coats, are worn by dogs and provide adornment and protection.
There is abundant precedent in the form of prior CBP decisions touching on this matter. A series of CBP rulings dating back to 1998 (See e.g., NY N004125, dated December 13, 2006; NY L89935, dated January 30, 2006; NY M87981, dated November 3, 2006; NY J82052, dated March 31, 2003 and NY PD C85591, dated April 3, 1998) have consistently classified pet costumes under subheading 4201.00.6000, HTSUS.
HOLDING:
By application of GRI 1, the instant pet costumes are classified in heading 4201,
HTSUS, and are specifically provided for in subheading 4201.00.60, which provides for
“Saddlery and harness for any animal (including traces, leads, knee pads, muzzles,
saddle cloths, saddle bags, dog coats and the like), of any material: Other.” The 2009
column one, general rate of duty is 2.8% 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 on World Wide Web at http://www.usitc.gov/tata/hts/.
EFFECT ON OTHER RULINGS:
NY N019717, dated December 13, 2007, is affirmed.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division