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NY D85296





December 10, 1998

CLA-2-61:RR:NC:3:353 D85296

CATEGORY: CLASSIFICATION

TARIFF NO.: 6104.43.2020; 6117.80.9540; 6506.91.0060

Ms. Grace Gorman
Four Star Int'l. Trading Co.
Williamsburg Square
229 East Main St.
Milford, MA 01757

RE: The tariff classification of a Witch Costume and Clown Hat from China.

Dear Ms. Gorman:

In your letter dated November 25, 1998, you requested a classification ruling. Sample were submitted for examination with your request.

The submitted samples, no style numbers, are a three piece child's Witch Costume and a Clown Hat. The Witch Costume consists of a dress, cape and hat. The dress and cape are composed of knit 60% polyester/40% lycra fabric. The hat is composed of woven 54% polyester/36% lycra fabric/10% metal fabric. The dress is one piece with long sleeves and a large piece of fabric with a tattered edge hanging from each sleeve. The hem has the same tattered edging. At the back there is an opening and piping around the neckline with a self tie at the back. The cape is not of a fabric that would be used for warmth and is fashioned like a shawl. It is a semi circle in design with piping at the neckline with a self tie. The hat is a cone shape at the crown with a 2 « in brim. The Clown Hat is composed of fabric of a metallic soft PVC with a flannel lining. The Mad Hatter design has a 9 inch crown and a 2 inch brim.

ISSUE:

Whether the costumes are festive articles of chapter 95 or of textile articles of fancy dress classifiable under chapter 61 or 62.

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's). The systematic detail of the harmonized system is such that virtually all goods are classified by application of GRI 1, that is, according to the terms of the headings of the tariff schedule and relative section of the chapter notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and the headings and legal notes do not otherwise require, the remaining GRI's may then be applied. The Explanatory Notes (ENs) to the Harmonized Commodity Description and Coding System, which represent the official interpretation of the tariff at the international level, facilitate classification under the HTSUSA by offering guidance in understanding the scope of the headings and GRIs.

Heading 9505, HTSUSA, includes articles which are for "Festive, carnival, or other entertainment." It must be noted, however, that Note 1(e), chapter 95, HTSUSA, does not cover "fancy dress, of textiles, of chapter 61 or 62." The EN's to 9505, state 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 pastiche- heading 67.04), and paper hats. However, the heading excludes fancy dress of textile materials, of chapter 61 or 62.

In interpreting the phrase "fancy dress, of textiles, of chapter 61 or 62," Customs initially took the view that fancy dress included "all" costumes regardless of quality, durability, or the nature of the item. However, Customs has reexamined its view regarding the scope of the term "fancy dress" as it related to costumes. On November 15, 1994, Customs issued Headquarters Ruling Letter (HRL) 957318, which referred to the settlement agreement of October 18, 1994, reached by the United States and Traveler Trading. In HRL 957318, Customs stated that it had agreed to classify as festive articles in subheading 9505.90.6000, costumes of a flimsy nature and construction, lacking in durability, and generally recognized as not being a normal article of apparel.

In view of the aforementioned, Customs must distinguish between costumes of chapter 95 (festive articles), and costumes of chapters 61 and 62 (articles of fancy dress). This can be accomplished by separately identifying characteristics in each article that would indicate whether or not it is of a flimsy nature and construction, lacking in durability, and generally recognized as a normal article of apparel.

The submitted samples are comparable in construction and durability. The dress has finished seams and piping around the neckline, and the cape also has piping around the neckline finishing the garment. The amount of finishing is such that the articles are neither flimsy in nature or construction, nor lacking in durability.

In as much as the Witch Costume consists of two distinct garments, Note 13, Section XI, of the HTSUSA is applicable and provides:

Unless the context otherwise requires, textile garments of different headings are to be classified in their own headings even if put in sets for retail sale.

Note 13 of Section XI requires that the textile garments of different headings be separately classified, thus preventing classification of costumes consisting of two or more garments as sets. If a set cannot exist by application of Note 13, the articles which may be packaged with the garments must also be classified separately. Accordingly the accessory cape and hat must also be classified separately.

The applicable subheading for the dress will be 6104.43.2020, Harmonized Tariff Schedule of the United States (HTS), 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 duty rate will be 16.6 percent ad valorem. The textile category designation is 636.

The applicable subheading for the cape will be 6117.80.9540, Harmonized Tariff Schedule of the United States (HTS), which provides for "Other made up clothing accessories, knitted or crocheted; knitted or crocheted parts of garments or of clothing accessories: Other accessories: Other: Other, Of man-made fibers: Other." The rate of duty will be 15.1 percent ad valorem. The textile category designation is 659.

The applicable subheading for the Witch Hat will be 6505.90.8090, Harmonized Tariff Schedule of the United States (HTS), which provides for "Hats and other headgear, knitted or crocheted, or made up from lace, felt or other textile fabric, in the piece (but not in strips), whether or not lined or trimmed; hair-nets of any material whether or not lined or trimmed: Other: Of man-made fibers: Other: Not in part of braid, Other: Other." The rate of duty will be 20 cents/kg + 7.5 percent ad valorem. The textile category designation is 659.

The applicable subheading for the Clown Hat will be 6506.91.0060, Harmonized Tariff Schedule of the United States (HTS), which provides for "Other headgear, whether or not lined or trimmed: Other: Of rubber or plastics, Other." The rate of duty will be 0.5 percent ad valorem.

Based upon international textile trade agreements products of China are subject to quota and the requirement of a visa.

The designated textile and apparel categories may be subdivided into parts. If so, visa and quota requirements applicable to the subject merchandise may be affected. Part categories are the result of international bilateral agreements which are subject to frequent renegotiations and changes. To obtain the most current information available, we suggest that you check, close to the time of shipment, the Status Report on Current Import Quotas (Restraint Levels), an internal issuance of the U.S. Customs Service, which is available for inspection at your local Customs office.

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 212-466-5881.

Sincerely,

Robert B. Swierupski

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