Classification of Textile Costume

HQ H046715 March 16, 2009 CLA-2 OT:RR:CTF:TCM H046715 ASM CATEGORY: Classification TARIFF NO.: 6104.43.2020 Ms. Luz Guzman Safety Coordinator Disguise, Inc., 11906 Tech Center Court Poway, CA 92064 RE: Classification of Textile Costume Dear Ms. Guzman: This is in response to your request dated October 30, 2008, for a binding ruling made on behalf of your company, Disguise, Inc., regarding the classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) of a textile costume. Samples have been received by Customs and Border Protection (CBP) and carefully examined in connection with this ruling letter. FACTS: The sample submitted is identified by you as the “Skeleton Bride Child” (Style 50071). It features a one piece dress constructed with a knit fabric for the underlying foundation of the bodice, skirt, and sleeves. The front of the skirt is comprised of three different fabrics in varying lengths. The foundation panels (both front and back) are constructed of a white knit fabric with the front panel descending approximately 15 inches in length, while the back panels are designed to form a slightly longer rounded train and are approximately 21 inches in length. The second layer consists of a sheer woven white iridescent fabric which is used in both the front and back skirt panels and is approximately 13 to 16 inches in length. The uppermost or top layer is only used in the front skirt panel and is constructed of a white net fabric that is approximately 12 to 15 inches in length. The edges of the knit fabric are finished in overlock stitching in matching white thread. The second layer of sheer woven fabric features peaked, jagged edges that have been finished in a decorative silver thread in overlock stitching that serves to embellish and secure the edges. The top front panel has a net layer hat has been styled with raw peaked, jagged edges and cut holes to enhance the skeleton or graveyard theme of the costume. The raw edges of the net fabric resist fraying. The bodice of the subject costume is constructed of white knit fabric in which the front panel has been printed with an anatomical rib cage, spinal column, and a stylized red heart. This printed design is further embellished with silver and red glitter. White net fabric overlays the front panel and features the same distinctive pierced holes that were used in the skirt panel and lend to the graveyard theme of this costume. The high rounded neckline has an attached and loosely draped hood constructed of matching white knit fabric which is comprised of two panels that have been securely joined with overlock stitching at the back seam and at the neckline. A decorative silver bias tape secures the front edges and embellishes the hood. The inside back panel has been fitted with a ¼ inch elastic sewn to the inside at the waist. There is a slash opening in the back of the bodice with two hook and loop closures. The edges of the back opening have been finished with overlock stitching in matching white thread. The sleeves are constructed of white knit fabric and descend approximately 16 ½ inches in length. The knit fabric sleeves have been punctured in keeping with the costume theme. The same iridescent sheer white fabric that was used in the skirt also appears at the edges of the knit sleeve panels conveying a stylized voluminous, bell shaped cuff with jagged edges (approximately 12 inches in width x 10 to 12 inches in length) that have been finished in overlock stitching with decorative silver thread. The entire sleeve is fitted with an uppermost layer of white net fabric that descends the entire length of the sleeve with raw jagged edges and pierced holes at the cuffs. ISSUE: Whether the “Skeleton Bride Child” is classified in heading 9505, HTSUSA, as a festive, carnival, or other entertainment article or heading 6102, HTSUSA, as a girl’s dress. 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). 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 heading and legal notes do not otherwise require, the remaining GRI may then be applied. The Harmonized Commodity Description and Coding System Explanatory Notes (“ENs”) constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the Harmonized Tariff Schedule and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989). Heading 9505, HTSUSA, includes articles, which are "Festive, carnival, or other entertainment articles, including magic tricks and practical joke articles; parts and accessories thereof". Note 1(e), Chapter 95, HTSUSA, excludes articles of "fancy dress, of textiles, of chapter 61 or 62" from classification in Chapter 95, HTSUSA. The ENs to 9505, HTSUSA, 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. [emphasis supplied]     * * * Heading 6102, HTSUSA, provides for “Women’s or girls’ suits, ensembles, suit-type jackets, blazers, dresses, skirts, divided skirts, trousers, bib and brace overalls, breeches and shorts (other than swimwear), knitted or crocheted.” The term “fancy dress” is not defined in the HTSUSA. However, in Rubie’s Costume Company v. United States, 337 F.3d 1350 (Fed Cir. 2003), hereinafter Rubie’s, the Court of Appeals for the Federal Circuit stated that the term “fancy dress” encompasses textile costumes that are classifiable “wearing apparel” under Chapter 61 or 62. Id. at 1357. The Court further affirmed CBP’s decision in Headquarters Ruling Letter (HQ) 961447, dated July 22, 1998, and held that the decision merited deference when CBP set forth specific characteristics which determined that textile costumes of a flimsy nature and construction, lacking in durability, and generally recognized as not being normal articles of apparel were classifiable as duty free “festive articles” under subheading 9505.90.6000, HTSUSA. Id. at 1358. Of particular relevance to the merchandise now in question is the fact that the court specifically noted that HQ 961447 had correctly compared functional and structural deficiencies of “festive article” costumes with the standard features found in “wearing apparel” in order to determine whether articles are properly classified in Chapter 95 or Chapters 61/62, HTSUSA. Id. Specifically, the Court cited approvingly CBP’s focus on the texture and quality of the materials as "flimsy and non-durable textile costumes whose principal intended use is for a one time festive occasion [which] are distinct from 'wearing apparel' which the courts have held to be used for decency, comfort, adornment or protection." Id. citing HQ 961447. The texture and quality of the materials is to be determined by such factors as the extent of styling features such as zippers, inset panels, darts or hoops, and whether the edges of the materials had been left raw or finished. Id.; see also HQ 957948, dated May 7, 1996 (setting forth certain styling and sewing features of costumes which exemplify the characteristics of "textile articles of fancy dress" under Chapter 61 or 62) and; HQ 957952 dated May 7, 1996. The aforementioned features and numerous other characteristics used to distinguish between textile costumes classifiable as “Festive articles” of Chapter 95, HTSUSA, and “fancy dress” of Chapters 61 or 62, HTSUSA, has also been set forth in great detail in the CBP Informed Compliance Publication (ICP), What Every Member of the Trade Community Should Know About: Textile Costumes under the HTSUS, August 2006 (“Textile Costumes under the HTSUS”). As noted in this publication, we generally consider four areas in making classification determinations for textile costumes, i.e., “Styling”, “Construction”, “Finishing Touches”, and “Embellishments”. With regard to “Styling”, the examples provided in the ICP note that a “well-made” article of Chapter 61 or 62, HTSUSA, would have two layers of fabric, pleats, and facing fabrics (two or more layers of fabric/linings). The subject costume has abundant “Styling” features with multiple skirt panels, strong overlock edges to prevent fraying, and embellished fabric with a detailed printed design and glitter effect. The draped net hood, long sleeves with multiple panels and voluminous bell shaped cuffs, and elongated “train” panel in the back, are distinctive styling features. The ICP also provides examples of well-made “Construction” elements, which include an assessment of the neckline and seams. Since the over-lock stitching used on each of the raw edges of this costume, including the hemlines and back opening, serves to make the costume more durable. Further, we find that the stitching is of durable construction. In this instance, we also note that the quality of the stitching and interior seam construction is not loose or gaping. As a result, the seams are of sufficient strength and quality to allow for repetitive use of the article. In particular, the hood is further reinforced with the silver bias tape edging. In addition the ICP notes that costumes that are well-made have embroidery and trimmings, and appliqués that have been sewn to the fabric. In each instance, the jagged edges of the iridescent sheer white fabric have been enhanced with overlock stitching using silver thread. In fact, the ICP notes that well-made articles may have decorative overlock stitching visible at the neckline or wrists which provides ornamentation and increased durability at edges which receive significant wear. Such is the case in the subject costumes which feature durable overlock stitching in thread shades in bright silver thread that secures and enhances the edges. The silver bias tape used on the hood greatly enhances that element and frames the face. The detailed anatomical ribcage and stylized heart printed on the front bodice panel has been greatly enhanced by the use of silver and red glitter. Finally, the ICP notes that it is important to consider the garment as a whole. This is accomplished by considering whether or not it is reasonable to conclude that the article is a normal article of wearing apparel. Normal articles of apparel are usually designed for multiple wear and cleaning. Thus, it is necessary to assess the type of fabric used and the appropriateness of finishing elements for that fabric. With respect to longevity of the article, certain fabrics, such as netting, tightly knit/woven fabrics, or treated fabrics, may be very durable even with a raw edge. In this instance, the raw edges were primarily used on fabrics resistant to fraying and are intended to enhance the styling features on the costume. As such, when the textile costume is comparable to a normal article of wearing apparel, it is classified in Chapter 61 or 62, HTSUSA. In view of the foregoing, it is our determination that the subject costume has been designed and constructed as wearing apparel for repetitive use given the abundant styling features and durable construction. Accordingly, the costume is properly classified as a “well-made” article of wearing apparel in heading 6104, HTSUSA. HOLDING: In accordance with GRI 1, the subject merchandise, which you have identified as the “Skeleton Bride Child” (Style 50071), is classified in subheading 6104.43.2020, HTSUSA, which provides for “Women’s or girls’ suits, ensembles, suit-type jackets, blazers, dresses, skirts, divided skirts, trousers, bib and brace overalls, breeches and shorts (other than swimwear), knitted or crocheted: Dresses: Of synthetic fibers: Other, Girls’.” The general column one rate of duty is 16 percent ad valorem and the applicable textile category code is 636. 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. With the exception of certain products of China, quota/visa requirements are no longer applicable for merchandise which is the product of World Trade Organization (WTO) member countries. The textile category number above applies to merchandise produced in non-WTO member-countries. Quota and visa requirements are the result of international agreements that are subject to frequent renegotiations and changes. To obtain the most current information on quota and visa requirements applicable to this merchandise, we suggest you check, close to the time of shipment, the "Textile Status Report for Absolute Quotas" which is available on our web site at www.cbp.gov. For current information regarding possible textile safeguard actions on goods from China and related issues, we refer you to the web site of the Office of Textiles and Apparel of the Department of Commerce at otexa.ita.doc.gov. Due to the changeable nature of the statistical annotation (the ninth and tenth digits of the classification) and the restraint (quota/visa) categories, you should contact the local CBP office prior to importation of this merchandise to determine the current status of any import restraints or requirements. Sincerely, Gail A. Hamill, Chief Tariff Classification and Marking Branch