Classification of a boys 100% cotton knit fabric long sleeve garment; "Happy Halloween"; festive articles; Chapter 95, Legal Note 1(v)

HQ H056822 May 15, 2009 CLA-2 OT:RR:CTF:TCM H056822 JPJ CATEGORY: Classification TARIFF NO.: 6109.10.0027 Kevin Maher C-Air Customhouse Brokers 181 S. Franklin Avenue Valley Stream, NY 11581 RE: Classification of a boys 100% cotton knit fabric long sleeve garment; “Happy Halloween”; festive articles; Chapter 95, Legal Note 1(v) Dear Mr. Maher: This letter is in response to your request, dated February 25, 2009, wherein you requested a binding ruling pertaining to the classification under the Harmonized Tariff Schedule of the United States (HTSUS) of an item described as a boys’ 100% cotton knit fabric long sleeve t-shirt sized X-Small to X-Large. Your request has been forwarded by the National Commodity Specialist Division (NCSD) in New York to this office for a response. A sample was forwarded with your request. The sample will be returned. FACTS: Style number K2610L0004 is a boys garment constructed of 100% cotton knit fabric. It features a rib knit crew neckline, long hemmed sleeves, a straight hemmed bottom, and an appliqué in the form of a Frankenstein monster standing next to tombstones and a skull in a cemetery. One of the tombstones is marked “Happy Halloween”. The sky around the monster includes a full moon, dark clouds, and bats flying in all directions. The item will be imported in boys’ (youth) sizes X-Small to X-Large. ISSUE: Whether the boys’ garment is classifiable as a festive article, in heading 9505, HTSUS or as a knitted t-shirt, in heading 6109, HTSUS. LAW AND ANALYSIS: Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRI’s). 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 may then be applied. The HTSUS provisions under consideration are as follows: 6109 T-shirts, singlets, tank garments and similar garments, knitted or crocheted: * * * 9505 Festive, carnival or other entertainment articles, including magic tricks and practical joke articles; parts and accessories thereof: * * * Note 1 to Section XI, HTSUS, provides, in relevant part: This section does not cover: * * * Articles of chapter 95 (for example, toys, games, sports requisites and nets); * * * Note 1 to Chapter 95, HTSUS, provides, in relevant part: 1. This chapter does not cover: * * * (v) 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). 1/ See subheading 9817.95 * * * * * * * * The Harmonized Commodity Description and Coding System Explanatory Notes ("EN’s") constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the EN’s 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. 35127-28 (Aug. 23, 1989). The ENs to heading 6109, provide, in relevant part: The term “T-shirts” means lightweight knitted or crocheted garments of the vest type, of cotton or man-made fibre, not napped, nor of pile or terry fabric, in one or more colours, with or without pockets, with long or short close-fitting sleeves, without buttons or other fastenings, without collar, without opening in the neckline, having a close-fitting or lower neckline (round, square, boat-shaped or V-shaped). These garments may have decoration, other than lace, in the form of advertising, pictures or an inscription in words, obtained by printing, knitting, or other process. The bottom of these garments is usually hemmed. The ENs to heading 9505, provide, in relevant part: 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: (1) Festive decorations used to decorate rooms, tables, etc. (such as garlands, lanterns, etc.); decorative articles for Christmas trees (tinsel, coloured balls, animals and other figures, etc); cake decorations which are traditionally associated with a particular festival (e.g., animals, flags). (2) Articles traditionally used at Christmas festivities, e.g., artificial Christmas trees, nativity scenes, nativity figures and animals, angels, Christmas crackers, Christmas stockings, imitation yule logs, Father Christmases. * * * * * * * * 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 have requested that the garment be classified under subheading 9505.90.6000, HTSUS, as a festive article. However, effective February 3, 2007, Chapter 95, Note 1(v), HTSUS, excludes, in relevant part, apparel having a utilitarian function from Chapter 95, HTSUS. Despite the recognized festive designs and/or motifs printed on the garment, including the Frankenstein monster, the words “Happy Halloween”, and the flying bats, pursuant to Chapter 95, Note 1(v), HTSUS, the garment is excluded from heading 9505, HTSUS. The garment meets the terms of heading 6109, HTSUS, as described by the ENs. In particular the garment is constructed of a lightweight knit cotton fabric, without pockets, with long close-fitting sleeves, without buttons or other fastenings, without collar, without opening in the neckline, having a round neckline, and has a decoration in the form of pictures obtained by other process. The bottom of the garment is hemmed. HOLDING: In accordance with GRI I, the garment is classified in heading 6109, HTSUS. It is specifically provided for in subheading 6109.10.0027, HTSUSA as: "T-shirts, singlets, tank garments and similar garments, knitted or crocheted: Of cotton; Men’s or boys’; Other.” The 2009 general, column one rate of duty is 16.5%. The textile category code is 338. However, such classification may be affected by the current litigation in the CIT in Michael Simon Design, Inc. v. United States, Consolidated Case No. 09-00016, and Target Stores v. United States, Case No. 09-00039 (collectively, “Michael Simon II”), in which plaintiffs are challenging the implementation of Note 1(v) to Chapter 95 and Subheading 9817.95.05. Accordingly, upon your request, liquidation of entries of this merchandise shall be extended pursuant to 19 C.F.R. 159.12(a)(1)(ii) and (d)(2). A request may cover more than one entry, but each entry must be identified by number. Before an extension expires, you may, in accordance with 19 C.F.R. 159.12(d)(2), request another extension in writing, up to the three year statutory limit for extension of liquidations in 19 C.F.R. 159.12(e). If you do not request that the liquidation of its entries be extended, or the current litigation has not been resolved at the end of the 4-year period from the date of entry, the entry shall be liquidated, with the articles classified under 6109, HTSUS, pursuant to Note 1(v) to Chapter 95, HTSUS. Duty rates are provided for 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/. A copy of this ruling letter should be attached to the entry documents filed at the time this merchandise is entered. If the documents have been filed without a copy, this ruling should be brought to the attention of the CBP officer handling the transaction. Sincerely, Gail A. Hamill, Chief Tariff Classification and Marking Branch