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HQ 962232




November 9, 2000

CLA-2 RR:CR:TE 962232 ss

CATEGORY: CLASSIFICATION

TARIFF NO.: 6104.53.2020

Scott E. Rosenow, Esquire
Stein Shostak Shostak & O’Hara
1620 L Street, N.W. Suite 807
Washington, D.C. 20036-5605

RE: Request for Reconsideration of New York Ruling Letter C88186; Classification of “Dazzling Dreams Costume” and “Dazzling Dreams Ballerina Dreams Dress-Up Set”; Articles of Fancy Dress; Subheading 6104.53.2020, HTSUSA; Not Dress-Up Sets; Not Subheading 9503.70.0000, HTSUSA; Not Festive Articles; Not Subheading 9505.90.6000, HTSUSA; GRI 3(b) set

Dear Mr. Rosenow:

This is in response to your letter, dated September 22, 1998, on behalf of your client, Funrise Toy Corporation, requesting reconsideration of New York Ruling Letter (NY) C88186, dated June 2, 1998, regarding the classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) of a “Dazzling Dreams Costume.” In your Request for Reconsideration, you also requested a binding ruling on similar merchandise called “Dazzling Dreams Ballerina Dreams Dress-Up Set.”

FACTS:

The “Dazzling Dreams Costume,” also identified by Item No. 20451, is a child’s costume consisting of a tutu and tiara. The tutu is of knit construction and is stated to be made of man-made fiber fabric. The tutu is a skirt with a handkerchief design at the bottom and a fabric covered elasticized waistband with a finished bow and imitation feather at the front. The tiara is a plastic jeweled headpiece.

The “Dazzling Dreams Dress-Up Set,” also identified by Item No. 20451A, is also a child’s costume consisting of a tutu and tiara. In your submission you state that the tutu is a pink skirt constructed of 20 denier nylon tricot fabric in a handkerchief design with no hems which are turned or finished. The tutu has a metallic tricot waistband with a ribbon inserted within the waistband that acts as a tie closure. A metallic tricot bow and imitation feather decorate the front of the waistband. The tutu also has a tag, which among other things, advises consumers that the tutu is a “Fantasy Play Costume” and warns, “Do not wash or dry clean.” The tiara is constructed of hard plastic with five large simulated gems.

In NY C88186, Customs classified the “Dazzling Dreams Costume” as a skirt under subheading 6104.53.2020, HTSUSA. It is your position that the subject articles are properly classifiable in subheading 9503.70.0000, HTSUSA, as dress-up sets. In the alternative, you suggest that the subject articles are properly classifiable in subheading 9505.90.6000, HTSUSA, as festive articles.

ISSUE:

What is the proper classification of the merchandise at issue?

LAW AND ANALYSIS:

Classification of merchandise under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) is governed by the General Rules of Interpretation (GRI). GRI 1 provides that classification shall be determined according to the terms of the headings and any relative section or chapter notes, taken in order. Merchandise that cannot be classified in accordance with GRI 1 is to be classified in accordance with subsequent GRI. The Explanatory Notes (EN) 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 GRI.

There are three headings under consideration: 1) heading 9503, HTSUSA, which covers certain toys; 2) heading 9505, HTSUSA, which covers, among other things, festive articles (which includes articles of fancy dress); and 3) heading 6104, HTSUSA, which covers, among other things, skirts (which includes articles of fancy dress of textiles). The first question in this case is whether the articles are considered toys or articles of fancy dress (or what is commonly referred to as “costumes”). If the articles are found to be fancy dress, the next question is whether they are festive articles of chapter 95, HTSUSA, or fancy dress of textiles of chapter 61, HTSUSA.

Heading 9503, HTSUSA, provides for other toys. Although the term "toy", in general, is not specifically defined in the tariff, the EN to chapter 95, HTSUSA, indicate that the chapter covers toys of all kinds whether designed for the amusement of children or adults. It has been Customs position that the "amusement" requirement means that toys should be designed and used principally for amusement. Dress-up sets are classified under subheading 9503.70, HTSUSA. A dress-up set amuses children by enabling them to act out or role play as grown-ups.

Articles of fancy dress are classified under heading 9505, HTSUSA, or in chapters 61 or 62, HTSUSA, depending on their construction. The EN to heading 9505, HTSUSA, state that festive articles includes articles of fancy dress but specifically excludes fancy dress, of textile materials, of chapter 61 or 62. Furthermore, note 1(e) of chapter 95, HTSUSA, states that the chapter does not cover "fancy dress, of textiles, of chapter 61 or 62.” Thus, we must be attentive to the distinction between dress-up sets, festive articles (fancy dress) and fancy dress of textiles.

In Headquarters Ruling Letter (HQ) 958061, dated October 3, 1995, Customs listed examples of dress-up sets to include:

Cowboy: complete with gun, badge and bandanna;

Nurse: complete with stethoscope and thermometer;

3. Pretty-lady: complete with jewelry and feather bow;

Bride: complete with veil and bouquet.

We note that these sets do not form costumes nor are the textile items generally recognizable as fancy dress. Customs has stated that dress-up sets classifiable in subheading 9503.70, HTSUSA, are limited to a combination of articles, most of which are toys, that are illustrative of the recreation or work of a person or profession. See NY B86522, dated August 26, 1997. By way of example, NY B86522 stated that a policeman dress-up set would consist of a badge, toy gun, and toy handcuffs. Furthermore, this office has been advised by the National Import Specialist for toys that the majority of products known and marketed as dress-up sets do not contain any item of textile.

In HQ 954559, dated February 16, 1994, Customs stated that most dress-up sets consist principally of toy items packaged on occasion with an item of textile, such as a piece of fabric. The bride dress-up set classified in HQ 954559, under heading 9503, HTSUSA, consisted of a tiara, veil, lacy cuffs, lacy bouquet, and choker. For other rulings which classify dress-up sets under heading 9503, HTSUSA, see HQ 083387, dated April 13, 1989, (dress-up sets consisting of shawls, gloves, hats, socks, purses and belts in various combinations); HQ 085905, dated January 29, 1990, (dress-up set consisting of gloves and belt); HQ 085904, dated January 29, 1990, (dress-up set consisting of a stole/wrap and tiara); HQ 960275, dated March 16, 1998, (dress-up set consisting of a handbag, bracelet, necklace, ring, watch, headband, earrings, lipstick, invitations and lace gloves), NY 851401, dated April 24, 1990, (dress-up set consisting of a cowgirl hat, purse, fringed fingerless gloves, bandana, plastic spurs and a badge); and NY 873629, dated May 19, 1992, (dress-up set consisting of a tiara and two wrist bands). In each of these cases, the sets did not form costumes and thus were classifiable under subheading 9503.70, HTSUSA, as dress-up sets.

In HQ 958061, Customs took HQ 954559 one step further and stated that most dress-up sets consist principally of toy items packaged on occasion, with an item of textile wearing apparel or a hat. However, more recently, Customs has stated that the inclusion of a wearing apparel item will exclude merchandise from classification as dress-up sets under heading 9503, HTSUSA. NY B86522, dated August 26, 1997, involved merchandise claimed to be a dress-up set which consisted of a ballerina tutu, tiara, wand and dress up shoes. Customs stated that to be classified in heading 9503, HTSUSA, as opposed to 9505, HTSUSA, the item must be a dress-up set, not a costume. Since costumes are specifically wearing apparel, Customs believed that any retail item containing wearing apparel items was excluded from classification under heading 9503, HTSUSA. Thus, the presence of the tutu made the retail package a costume and the merchandise was not classified as a dress-up set under heading 9503, HTSUSA. See also NY B88764, dated September 9, 1997, (“Esmeralda Gypsy Play Set” consisting of a tiara, necklace, rings, earrings, net veil and a wrap-a-round textile skirt denied classification as a dress-up set due to the presence of the skirt) and NY D86523, dated January 28, 1999, (dress-up set consisting of an imitation fur cape, gloves, plastic shoes, plastic necklace, earrings and ring classified as a dress-up set under heading 9503, HTSUSA, because the cape was considered an accessory rather than a garment).

Although many of the dress-up sets classified under heading 9503, HTSUSA, contained some textile articles, the textile articles were not considered “fancy dress of textiles, of chapter 61 or 62,” precluded from classification within chapter 95 by virtue of Note 1(e) to Chapter 95, HTSUSA. Thus, when a dress-up set contains fancy dress of textile and has the completeness of a costume, it will be considered a costume regardless of how it is packaged. In other words, dress-up sets which consist of fancy dress of textile (such as a dress, tunic or skirt) and other items which taken together as a whole create a costume will be classified following the analysis for costumes. Ballerina tutus have consistently been found to be articles of fancy dress and denied classification under heading 9503, HTSUSA. See HQ 958061, dated October 3, 1995; NY B83427, dated June 17, 1997; NY B86522, dated August 26, 1997; NY B86761, dated August 20, 1997; NY B89328, dated October 1, 1997; and NY C87719, dated May 22, 1998.

In HQ 958061, Customs classified a ballerina costume as an article of fancy dress of textiles under heading 6204, HTSUSA. The costume included a bodice with an attached net overlay which gave the garment the appearance of a dress and matching underpants. Customs refused to classify the costume as a dress-up set based on the fact that the principle item was the textile garment. You argue that the instant merchandise is distinguishable in that it does not have the overwhelming nature of a textile garment. We disagree. The principal item in the subject merchandise, i.e., its characteristic feature, is the textile garment. It is the opinion of this office that the merchandise at issue is excluded from classification as a dress-up set under heading 9503, HTSUSA. Unlike the dress-up sets described in the previously mentioned rulings, the subject merchandise does not consist principally of toy items. The ballerina tutu taken together with the tiara has the completeness to create a costume. Furthermore, the tutu is an article of fancy dress of textiles excluded from classification in chapter 95, HTSUSA.

Only those textile costumes which are well constructed for multiple use are classified in chapters 61 or 62, HTSUSA. See HQ 958061. Costumes classified in chapter 61 and 62, HTSUSA, are well-made and durable and feature the finishing touches found on wearing apparel. A "well-made" textile costume may or may not be, what is considered a "normal" article of attire. Thus, both a ball gown and a gorilla suit, if well-made and clearly reusable over a period of time, will be classified in chapters 61 or 62, HTSUSA, as appropriate. In interpreting the phrase "fancy dress, of textiles, of chapters 61 or 62", Customs has determined that costumes which are of a flimsy nature and construction, which lack durability, and which are generally recognized as not normal articles of apparel should not be excluded from classification within Chapter 95, HTSUSA. Such articles are classified under heading 9505, HTSUSA, as festive articles.

With respect to the “Dazzling Dreams Costume” (Item Number 20451), although the tutu does have an unfinished hem, it is cut in a handkerchief design to give it styling and the knit tricot fabric is a type that does not fray easily and is often made into apparel without a hem. In addition, the fabric is double stitched into a metalized fabric which has been embellished by a bow and feathers and completely encloses an elasticized waistband. With respect to the “Dazzling Dreams Ballerina Dreams Dress Up Set”, (Item Number 20451A), the only difference from Item Number 20451 is the tunnel waist. Customs recognizes non-elasticized tunnel waists as normal to wearing apparel. See Port Ruling Letter C89675, dated July 30, 1998. The overall amount of finishing is such that the article is neither flimsy in nature or construction, nor lacking in durability. These are the type of finishing touches found on wearing apparel which ensure that a garment will be reusable over a period of time and will maintain its durability. Even though not recommended for washing, the garment is of a quality to last a number of wearings. The tutu is of good enough quality that it could conceivably be worn for dance recitals. Tutus of this nature have been consistently classified as fancy dress/wearing apparel in Chapter 61 or 62, HTSUSA. See NY B83427, dated June 17, 1997; NY B86522, dated August 26, 1997; NY B86761, dated August 20, 1997; NY B89328, dated October 1, 1997; and NY C87719, dated May 22, 1998.

This office finds that the subject merchandise meets the definition of "well-made." The tutus are neither flimsy in nature and construction nor do they lack durability. We do not find the fact that the manufacturer has added a tag which warns against washing to be persuasive. As the garments are clearly reusable over a period of time, they are classifiable as fancy dress of chapter 61, HTSUSA, and specifically within heading 6104, 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).

Fancy dress packaged with accessories may be classified as sets by application of GRI 3(b) according to the item in the set from which the set derives its essential character. 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." With respect to the tiaras to be packaged with the costumes, GRI 3(b) is applicable because the tiaras have been retail packaged as accessories to a garment and each item in the set is classifiable under a separate heading. Pursuant to GRI 3(b), however, the accessory item in the set is classified in accordance with that article from which the set derives its essential character. Customs believes that the essential character of costumes consisting of a single garment with accessories is generally imparted by the garment, which in this case is the tutu.

We located one ruling, NY 851870, dated May 4, 1990, in which a textile dress with a knit elasticized bodice, long skirt, net elastic waist skirt, net veil and textile flower were classified as a dress-up set under heading 9503, HTSUSA. Please be advised that we are in the process of reviewing that ruling to determine whether it should be the subject of a proposed modification notice.

HOLDING:

The “Dazzling Dreams Costume” and “Dazzling Dreams Ballerina Dreams Dress-Up Set” are classifiable in subheading 6104.53.2020, 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: skirts and divided skirts: of synthetic fibers: other: girls'. The applicable rate of duty is 16.4 percent ad valorem and the quota category is 642.

The designated textile and apparel category may be subdivided into parts. If so, visa and quota requirements applicable to the subject merchandise may be affected. Since 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 on Current Import Quotas (Restraint Levels), an issuance of the U.S. Customs Service, which is updated weekly and is available at the local Customs office.

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 Customs office prior to importing the merchandise to determine the current applicability of any import restraints or requirements.

Sincerely,

John Durant, Director
Commerical Rulings Division

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