Classification of Textile Costume

HQ H052560 June 3, 2009 CLA-2 OT:RR:CTF:TCM H052560 ASM CATEGORY: Classification TARIFF NO.: 6104.43.2020 Handerson Handicraft Mfg. Co. 11F/6, No. 2, Jian-Ba Road, Chung-Ho Taipei, Taiwan RE: Classification of Textile Costume To Whom It May Concern: This is in response to your request dated December 22, 2008, for a binding ruling, made on behalf of your company, regarding the classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) of a textile costume. A sample has been received by Customs and Border Protection (CBP) and was carefully examined in connection with this ruling letter. FACTS: The sample submitted is identified by you as the “Creepy Reaper” costume (Style# B-1307-01). It features a one piece full length gown that descends to the ankles. The gown is constructed of a front and back panel of knit fabric connected at the side and shoulder seams. The gown is packaged with a long knit sash with jagged raw edges (approximately 9.5 inches wide x 4 feet 10 inches long). All interior seams of the gown have been finished with overlock stitching of a tight and uniform gauge. The hem consists of jagged raw edges. The full length bell sleeves have been stylized with an additional panel sewn into the seam that runs the length of the sleeve. These sleeve panels have jagged raw edges of various length with the longest being almost 24 inches long. A large 3-Dimensional (3-D) black and white vinyl appliqué depicting a skeletal rib cage, measuring approximately 10 inches wide x 11 inches long, has been sewn to the upper portion of the subject costume. A hood constructed of two panels has been sewn into the neckline with durable overlock stitching. This creates a secure and finished seam on the outside of the neckline. The hood features dark brown knit fabric on the outside and black knit fabric on the inside, with a center seam connecting the two panels. The edges are raw or unfinished. However, a single running stitch connects the two panels approximately 1 inch from the raw edge. Two voluminous gathered panels (measuring approximately 4 inches wide x 28 inches long) have been sewn into the top shoulder seams. These panels are also of the same dark brown knit fabric as the hood, have jagged raw edges, and are designed to descend along the back panel of the gown. An 8 inch slash opening at the back has been secured with durable overlock stitching and a hook and loop tab has been sewn at the mid-point of the slash opening to provide a closure. ISSUE: Whether the “Creepy Reaper” textile costume is classified in heading 9505, HTSUSA, as a festive, carnival, or other entertainment article or heading 6104, 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 subject merchandise contains two articles packaged together. The gown and sash cannot be classified pursuant to a GRI 1 analysis because the articles are prima facie, classifiable in two different headings. The gown may be classified as a girl’s dress in heading 6104, HTSUSA, or as a festive, carnival, or other entertainment article in heading 9505, HTSUSA. The knit fabric sash may be classified as a clothing accessory in heading 6117, HTSUSA. When goods are, prima facie, classifiable in two or more headings, they must be classified in accordance with GRI 3, which provides in relevant part as follows: (a) The heading which provides the most specific description shall be preferred to headings providing a more general description. However, when two or more headings each refer to part only of the materials or substances contained in mixed or composite goods or to part only of the items in a set put up for retail sale, those headings are to be regarded as equally specific in relation to those goods, even if one of them gives a more complete or precise description of the goods. Mixtures, composite goods consisting of different materials or made up of different components, and goods put up in sets for retail sale, which cannot be classified by reference to 3(a), shall be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable. * * * GRI 3 establishes a hierarchy of methods for classifying goods that fall under two or more headings. GRI 3(a) states that the heading providing the most specific description is to be preferred to a heading, which provides a more general description. However, GRI 3(a) indicates that when two or more headings each refer to part only of the materials or substances in a composite good or to part only of the items in a set put up for retail sale, those headings are to be regarded as equally specific in relation to those goods, even if one of them gives a more complete or precise description than the other. In this case, the headings 6104 or 9505, and 6117, HTSUSA, each refer to only part of the items in the set. Thus, pursuant to GRI 3(a), we must consider the headings equally specific in relation to the goods. Accordingly, the goods are classifiable pursuant to GRI 3(b).      For classification purposes, the subject gown and sash are considered a “composite good". See Headquarters Ruling Letter (HQ) 960033, dated January 30, 1997, wherein a vest and belt were classified as a composite good with the vest imparting the essential character; HQ 960047, dated February 27, 1997, wherein a dress, self-fabric belt and shawl were considered to be a composite good; HQ 959342, dated July 18, 1996, wherein a women’s dress and self-fabric belt were classified as a composite good with the dress imparting the essential character; HQ 954073, dated September 23, 1993, wherein CBP classified a dress and textile belt, which were color coordinated and constructed of the same fabric, as a composite good, with the dress imparting the essential character to the item; HQ 956540, dated September 7, 1994, wherein CBP classified women's shorts with accompanying belts as composite goods. There have been several court decisions on "essential character" for purposes of GRI 3(b). These cases have looked to the role of the constituent materials or components in relation to the use of the goods to determine essential character. See, Better Home Plastics Corp. v. United States, 916 F. Supp. 1265 (CIT 1996), affirmed, 119 F. 3d 969 (Fed. Cir. 1997); Mita Copystar America, Inc. v. United States, 966 F. Supp. 1245 (CIT 1997), rehearing denied, 994 F. Supp. 393 (CIT 1998), and Vista International Packaging Co., v. United States, 19 CIT 868, 890 F. Supp. 1095 (1995). See also, Pillowtex Corp. v. United States, 983 F. Supp. 188 (CIT 1997), affirmed, 171 F. 3d 1370 (Fed. Cir. 1999). The essential character of the subject set can be determined by comparing each component as it relates to the use of the product. In this instance, it is the textile gown that imparts the essential character to the set. The gown is the largest component, uses the most material, and provides the wearer with an immediately recognizable character. Clearly, the gown was more costly to manufacture than the fabric sash. Thus, it is our determination that this set is classifiable pursuant to the gown which imparts the essential character. Heading 9505, HTSUSA, provides for: "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 6104, 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 (CAFC) stated that the term “fancy dress” encompasses textile costumes that are classifiable as “wearing apparel” under Chapter 61 or 62. Id. at 1357. In Rubie’s, the Court affirmed CBP’s decision in HQ 961447, dated July 22, 1998, 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. Specifically, the Court cited approvingly to 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. In HQ 959545, dated June 2, 1997, CBP considered the costumes that were later at issue in HQ 961447 and before the CAFC in the Rubie’s case. In 959545, four of the five costumes were deemed to be “flimsy” and classifiable in Chapter 95, HTSUSA. These four costumes had no significant styling features, were simple pull-on designs having no closures or had raw edged slit openings with tie closures. Furthermore, these raw edges were used on fabrics that ran or frayed easily while being worn. Thus, CBP determined that in assessing each costume as a whole, the amount of finishing and quality of construction was such that the articles were flimsy in nature and lacking in durability. CBP noted that such fabric could not withstand the multiple wear and cleaning that would be expected of a normal article of wearing apparel. In HQ 957948, dated May 7, 1996, CBP set forth in great detail the specific styling and sewing features of costumes that exemplify the characteristics of "textile articles of fancy dress" under Chapter 61 or 62, HTSUSA. In HQ 957948, styling features such as wire hoops encased with fabric tubing and securely sewn to the costume, shaped panels, braiding and other embellishments that had been securely sewn to the fabric, were all deemed to be characteristics of wearing apparel. Furthermore, all four costumes at issue therein were noted to have a substantial amount of “finishing” work (i.e., the sewing used to construct the article). Specifically, CBP noted that “[t]he overlock stitch is of a tight and uniform gauge thus increasing the costume’s durability because it appears that this type of fabric would otherwise fray easily.” It was further noted that the costumes had a significant number of decorative and stylistic elements which had been finished in such a manner as to increase the costume’s durability. In HQ 957952, dated May 7, 1996, CBP classified four costumes as “wearing apparel” of Chapter 62, HTSUSA, by identifying such features as elastics that had been enclosed by fabric tubing, durable overlock stitching on all interior seams, and substantial ornamentation with durable finishing elements. In addition, the ruling noted that each of the articles had been finished with a “strong and lasting” type of stitch and that the fabrics used to construct each of the costumes had been made durable by the quality of the finishing elements. In the recent decision, HQ H046715, dated March 16, 2009, CBP classified a textile costume identified as the “Skeleton Bride” in Chapter 61, HTSUSA. The “Skeleton Bride” features a one piece dress constructed with a knit fabric with raw edges. Although this dress also features panels of overlaid fabric, the outermost net fabric has raw edges and tattered holes that lend to the character of the costume. Furthermore, the raw edged fabric does not easily run or fray with normal use. The upper front panel of the dress has been embellished with a skeletal ribcage and heart design in glitter. A net fabric hood has been sewn to the neckline and edged with metallic fabric tubing. There is a back slash opening with hook and loop closures. In this ruling, it was held that the textile costume had abundant styling features and durable construction. The features and 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 been set forth 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). Examples of well-made “Construction” elements, include an assessment of the neckline and seams. In addition, the ICP notes that costumes that are well-made have embroidery and trimmings, and appliqués that have been sewn to the fabric. As set forth in the ICP, 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. The subject costume has very distinctive “styling” features. Specifically, it has been embellished with a large vinyl 3-D skeletal ribcage appliqué and has voluminous stylized inset panels sewn into the hem of the sleeves and shoulders. All the raw edges on this costume resist fraying and further add to the grim “reaper” character of the costume. Further, we find that the stitching is of durable construction which renders the seams of sufficient strength and quality to allow for repetitive use of the article. 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 presence of multiple styling features and durable construction. Accordingly, the costume is properly classified as a “well-made” article of wearing apparel in heading 6104, HTSUSA. In closing we note that our decision is consistent with other decisions classifying similarly constructed and styled costumes. See HQ H046715, dated March 16, 2009, and HQ 957952, dated May 7, 1996. HOLDING: In accordance with GRI 3(b), the subject merchandise, which you have identified as the “Creepy Reaper” (Style# B-1307-01), 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. 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