The tariff classification of a costume from China.

N085189 December 11, 2009 CLA-2-61:OT:RR:NC:TA:353 CATEGORY: Classification TARIFF NO.: 6104.43.2020, 6104.43.2010 Ms. Kim Benedetto Seasons USA, Inc. 3434 Heather Lane Wantagh, NY 11793 RE: The tariff classification of a costume from China. Dear Ms. Benedetto: In your letter dated November 10, 2009, you requested a tariff classification ruling. The sample which you submitted is being returned as requested. The submitted sample is a Style No. CS10-0086 Nightshade Fairy Costume consisting of a dress and wings. The costume will be imported in sizes J (14-16), XS (1-2), S (4-6), M (8-10), L (12-14) and PLUS (18-20). The Style No. CS10-0086 dress is constructed of a top of woven 100 percent polyester satin fabric with a front insert of knit 100 percent polyester velveteen fabric, and a skirt of knit 100 percent polyester mesh fabric. The essential character of the dress is imparted by the knit fabric. The wings are constructed of knit 100 percent polyester mesh fabric. The sleeveless dress features an off-the-shoulder look with a gathered shoulder strap with loose overlock stitching, faux lace up front, gathered multi-layer skirt, loose overlock stitched neck, sturdy waist and seams, armholes with loose overlock stitching, hook and loop tab closure with loose overlock stitching, skirts with loose overlock stitching, and sewn on ribbon bows. General Rule of Interpretation (GRI) 3(b) is applicable when goods are, prima facie, classifiable under two or more headings, and have been put up in sets for retail sale. GRI 3(b) states that the goods “shall be classified as if they consisted of the material or component which gives them their essential character.” In this case, the dress imparts the essential character of the set. You state that you believe the costume is properly classified under heading 9505 as a “festive article.” Costumes are considered “fancy dress.” The Court of Appeals ruled on the classification of costumes in its decision in Rubie’s Costume Co. v. United States, slip op 02-1373 (Fed. Cir. Aug. 1, 2003). The decision stated that all flimsy, non-durable textile costumes that are not ordinary articles of apparel are classified under 9505.90.6000 (flimsy); all textile costumes that do not meet flimsy, non-durable standards (well made), or are ordinary articles of apparel are classified in chapters 61 or 62. The overall amount of finishing is such that the article is neither flimsy in nature or construction, nor lacking in durability; your costume is well made. The applicable subheading for the Style No. CS10-0086 Nightshade Fairy Costume, Size J (14-16), will be 6104.43.2020, Harmonized Tariff Schedule of the United States (HTSUS), which provides for “Women’s or girls’…dresses, skirts, divided skirts…knitted or crocheted: Dresses: Of synthetic fibers: Other, Girls’.” The rate of duty will be 16 percent ad valorem. The applicable subheading for the Style No. CS10-0086 Nightshade Fairy Costume, Sizes XS (1-2), S (4-6), M (8-10), L (12-14) and PLUS (18-20), will be 6104.43.2010, Harmonized Tariff Schedule of the United States (HTSUS), which provides for “Women’s or girls’…dresses, skirts, divided skirts…knitted or crocheted: Dresses: Of synthetic fibers: Other, Women’s.” The rate of duty will be 16 percent 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/. This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 C.F.R. 177). A copy of the ruling or the control number indicated above should be provided with the entry documents filed at the time this merchandise is imported. If you have any questions regarding the ruling, contact National Import Specialist Kenneth Reidlinger at (646) 733-3053. Sincerely, Robert B. Swierupski Director National Commodity Specialist Division