Revocation of New York Ruling N097116, dated April 9, 2010; classification of children’s dress-up vests from China

HQ H105997 September 4, 2012 CLA-2 OT:RR:CTF:TCM H105997 RES CATEGORY: Classification TARIFF NO.: 9505.90.60 Ms. Jennifer S. Okerlund Senior Corporate Counsel Target Customs Brokers, Inc. 7000 Target Parkway North NCD-0456 Brooklyn Park, MN 55445 RE: Revocation of New York Ruling N097116, dated April 9, 2010; classification of children’s dress-up vests from China Dear Ms. Okerlund: This is in response to your letter dated May 11, 2010, on behalf of Target Corporation (“Target”) requesting reconsideration of New York Ruling Letter (“NY”) N097116 issued on April 9, 2010, regarding the classification, under the Harmonized Tariff Schedule of the United States (“HTSUS”), of children’s dress-up vests. The merchandise in NY N097116 was classified under heading 6217, HTSUS. We have reviewed NY N097116 and determined it is incorrect. Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. § 1625(c)(1)), as amended by section 623 of Title VI, notice of the proposed action was published on January 4, 2012, in Volume 46, Number 2, of the Customs Bulletin. No comments were received. FACTS: The subject vests are composed of 100% nonwoven polypropylene fabric and are worn over clothing. They have the dimensions of 16.5” x 19.25”, are pulled over the head, feature a rounded neckline, have oversized armholes with open sides and a hook/ loop strip closure, and hemmed edges. The side and bottom seams feature a 1/3” folded hem that contains 8-stitches per inch. The vests come in four different styles that distinguish the wearer as a member of a police, fire rescue, army, or construction crew. Each style is created by the vests’ coloring and by simple screen-printing of designs and words that identify what the wearer is dressed up as. The vests retail in the importer’s stores for $1.00. Target submitted a request on March 3, 2010, to CBP for a binding ruling on the classification of the children’s dress-up vests at issue here. CBP classified the vests in NY N097116 under heading 6217, HTSUS, as other clothing accessories. On May 11, 2010, Target submitted to CBP a request for reconsideration of NY N097116. The importer asserts that the vests are properly classified under heading 9505, HTSUS, as festive articles. ISSUE: Whether the children’s dress-up vests at issue are classified under heading 6217, HTSUS, as other clothing accessories or under heading 9505, HTSUS, as festive, carnival or other entertainment articles? LAW AND ANALYSIS: Classification under the HTSUS 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 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 2 through 6 may be applied in order. In understanding the language of the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System, which constitute the official interpretation of the Harmonized System at the international level, may be utilized. The ENs, although not dispositive or legally binding, provide a commentary on the scope of each heading, and are generally indicative of the proper interpretation of the HTSUS. See T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989). The HTSUS headings under consideration in this case are as follows: 6217 Other made up clothing accessories; parts of garments or of clothing accessories, other than those of heading 6212: 9505 Festive, carnival or other entertainment articles, including magic tricks and practical joke articles; parts and accessories thereof: The two classifications under consideration here fall under chapters 62 and 95 of the HTSUS. Chapter 62, which is part of Section XI (“Textiles and Textile Articles”), covers “Articles of Apparel and Clothing Accessories, not Knitted or Crocheted.” Note 1(t) to Section XI states that the section does not cover “Articles of chapter 95 (for example, toys, games, sports requisites; parts and nets).” Chapter 95 covers “Toys, Games and Sports Equipment; Parts and Accessories Thereof.” Note 1(e) to Chapter 95 states that the chapter does not cover “Sports clothing or fancy dress, of textiles, of chapter 61 or 62.” The ENs for heading 62.17 state in pertinent part: This heading covers made up textile clothing accessories, other than knitted or crocheted, not specified or included in other headings of this Chapter or elsewhere in the Nomenclature. The heading also covers parts of garments or of clothing accessories, not knitted or crocheted, other than parts of articles of heading 62.12. * * * * * The applicable part of the ENs for 95.05 provides: This heading covers: 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 pastiche – heading 67.04), and paper hats. However, the heading excludes fancy dress of textile materials, of Chapter 61 or 62. * * * * * CBP, in previous rulings regarding textile costume articles, has consistently interpreted the legal notes and ENs to mean that such articles are classifiable under heading 9505 as “festive articles” if the textile costumes: have a flimsy nature and construction; are lacking in durability; and are generally recognized as not being normal articles of apparel. In Headquarters Ruling (“HQ”) 961447, dated July 22, 1998, in response to a domestic interested party petition concerning the classification of certain textile costumes, CBP affirmed the classification of five textile costumes in HQ 959545, dated June 2, 1997. In HQ 961447, CBP classified four textiles costumes under heading 9505, HTSUS, as festive articles, and a fifth textile costume under heading 6209, HTSUS, as wearing apparel. CBP cited the ENs to 95.05 as support for assessing the durability of textile costumes in determining whether such articles are classifiable in Chapter 95. CBP noted that characteristics weighing in favor of non-durability and flimsy construction of textile costumes include styling features such as: a simple pull-on type of garment; the lack of zippers, inset panels, darts, or hoops; and edges of a garment that have been left raw and exposed, i.e. not hemmed. The four textile costumes at issue in HQ 961447 that were found to be festive articles had these styling features. While, in regard to the fifth textile costume at issue in HQ 961447 that CBP determined not to be classifiable as a festive article, CBP cited the type of sewing used to construct it, the durable bias tape used to cap the ruffled collar, wrists, and ankles, the lack of raw and exposed edges, and the substantiality of the sewing on the elastic at the wrist and ankles as styling features supporting that the article was well-constructed and durable. In addition, other rulings also cite examples of features that are indicative of substantial and durable garments, such as zipper closures, a fitted bodice with darts, a clown suit with a fabric encased wire hoop, petal shaped panels sewn into a waistline, and sheer/decorative panels sewn into the seams of costumes. See HQ 957948 and 957952, both dated May 7 1996, HQ H046715, dated March 16, 2009, and HQ H08260, dated June 3, 2009. Furthermore, the Court of Appeals for the Federal Circuit (“CAFC”) affirmed CBP’s analytical approach in regard to the classification of textile costumes as festive articles. In Rubie’s Costume Company v. United States, 337 F.3d 1350 (Fed. Cir. 2003), the CAFC affirmed CBP’s analysis and classification of textile costumes in HQ 961447. The CAFC concluded that “textile costumes of a flimsy nature and construction, lacking in durability, and generally recognized as not being normal articles of apparel, are classifiable as ‘festive articles.’” Rubie’s Costume Co., 337 F.3d at 1360. In addition, the features and characteristics used to distinguish between textile costumes classifiable as "festive articles" of Chapter 95, HTSUS, and "fancy dress" of Chapters 61 or 62, HTSUS, 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, CBP generally considers four areas in making classification determinations for textile costumes: "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. The ICP notes that costumes that are well-made may have embroidery and trimmings, and appliqués that have been sewn to the fabric. From previous CBP rulings, the court in Rubie’s Costume Co., and the ICP, the pertinent factors used in analyzing whether a textile costume is of a flimsy nature and non-durable construction include: styling, construction, finishing touches, and embellishments. Although not explicitly enumerated, but implied, are other factors such as comparison of an article to other analogous durable and non-durable items, cleaning durability, disposability, etc. Applying these factors, we can determine whether children’s dress-up vests are festive articles. A physical examination of samples of the children’s dress-up vests at issue here in light of these factors is as follows: Styling: There are no zippers, pockets, buttons, inset panels, intricate stitching, or other tailoring elements on the vests at issue. The vests simply consist of a single layer of woven fabric on the front and back panel. Construction: The vests are made up of two parts of nonwoven material which are stitched together at the shoulders with a single basic straight stitch that appears to be fairly sturdy. The neck and the arm holes are sewn with a visible overlock stitching, of which the loops of the stitching are loose enough that they can be pulled on and loosened with one’s fingers or when in use, can easily be snagged on something and ripped or pulled apart. Even though there are no raw edges in the neck or arm holes, the looseness and visibility of the overlock stitching, according to the ICP, are indicative of flimsy construction. Overall, the construction of the vests is a factor that weighs in favor of flimsy construction and non-durability. Finishing Touches: There are no raw or exposed edges in the vests’ construction. The side and bottom edges of the vest have a 1/3 inch folded hem with a single basic stitch that is securely sewn. Similar to the ends of the stitches with the shoulder stitches, the ends of the folded hem are loose and not tightly secured. In addition, the vests lack any closures that are reflective of being well-made, such as zippers or buttons with button holes. Instead, the vests have small hook and loop tabs that act as closures. Such small closures are supportive of a flimsy construction and lack of durability. Finally, the tension of the overlock stitching on the neck and the arm holes is loosely sewn. Overall, the vests have features that are indicative of flimsy construction such as loose ends of the stitching, small hook and loop tab closures, and the looseness of the overlock stitching. Embellishments: Two of the sample dress-up vests have screen-printed stripes on them. One dress-up vest labeled as “construction” on the front has two orange-yellow stripes perpendicular to a single horizontal stripe on both the front and back of the vest. A second dress-up vest labeled as “fire rescue” on the front has a single yellow and silver stripe on the front and back of the vest. Work safety vests in general have styling and construction features, which are considered well-made, such as a separate piece of trim that is sewn around all the edges of safety vests with sturdy stitching, a front opening with a substantial hook and loop or zippered closure, high visibility fabric, strips of highly reflective material sewn onto the vests, etc. In comparison, the children’s dress up vests lack the trim around the edges and have overlock stitching instead and have loose threading along the end of the seam stitches, while the stitching of the conventional safety vests is tightly secured at the ends. Therefore, given a consideration of the instant garment as a whole, along with its styling, construction, finishing touches, and embellishments, CBP finds that the vests are of a flimsy and non-durable construction. Hence, the children’s dress-up vests are classifiable as “festive articles” in heading 9505, HTSUS. Therefore, upon reconsideration CBP has determined that the classification in NY N097116 of the children’s dress-up vests in heading 6217, HTSUS, is incorrect. The children’s dress-up vests are properly classified in heading 9505, HTSUS, as “[f]estive, carnival or other entertainment articles, including magic tricks and practical joke articles; parts and accessories thereof.” HOLDING: Pursuant to GRI 1, the children’s dress-up vests are classified under subheading 9505.90.6000, HTSUSA, as “[f]estive, carnival or other entertainment articles, including magic tricks and practical joke articles; parts and accessories thereof: [o]ther: [o]ther.” Articles classified under this subheading are duty free. 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 the internet at www.usitc.gov. EFFECTS ON OTHER RULINGS: NY N097116, dated April 9, 2010, is revoked. In accordance with 19 U.S.C. 1625(c), this ruling will become effective 60 days after publication in the CUSTOMS BULLETIN. Sincerely, Myles B. Harmon, Director Commercial and Trade Facilitation Division