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NY C80861





December 31, 1998

CLA-2-62:RR:NC:WA:353 C80861

CATEGORY: CLASSIFICATION

TARIFF NO.: 6104.53.2020; 6110.30.3055

Ms. Kris Sutton c/o Charles M. Schayer & Co. 3839 Newport Street
Denver, CO. 80207

RE: The tariff classification of a Cheerleader's Costume from Hong Kong

Dear Ms. Sutton

In your letter dated October 17, 1997, received in our office on October 20, 1997, you requested a classification ruling on behalf of your client, Walter Goldberg Company. A sample was submitted for examination and will be returned as per your request.

The submitted sample, Item PTOFB-00151, is a two piece child's cheerleaders costume which consists of long sleeve top with a rib knit crew neck and cuffs and a skirt. Both top and skirt are stated to be made from man-made fibers and are of knit construction. The costume has two pompon accessories which are made up of a plastic handle and strips of plastic.

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 ant 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 postiche- 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 top features rib knit collars and cuffs along with raglan sleeves. The waist is fully elasticized with the elastic encased in textile and sewn down. The skirt is fully elasticized waist with the elastic encased in textile and sewn down and features two shaped panels of contrasting fabric which have been sewn into the front of the skirt. The bottom hem is folded over and sewn down with a straight stitch.. The amount of finishing is such that the articles are neither flimsy in nature or construction, nor lacking in durability.

The pompons are constructed of plastic handles that securely fasten plastic strips. The classification of the pompons has been referred to the Office of Regulations and Rulings, Customs Headquarters, Washington, D.C. and you will receive a ruling from that office.

In as much as the cheerleader 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 pompons must also be classified separately.

The applicable subheading for the top will be 6110.30.3055 Harmonized Tariff Schedule of the United States (HTS), which provides for "Sweaters, pullovers, sweatshirts, waistcoats(vests) and similar articles, knitted or crocheted: Of man-made fibers: Other: Other: Other: Other: Other: Women's or girls'.". The duty rate will be 33.5 percent ad valorem. The textile category designation is 639.

The applicable subheading for the skirt will be 6104.53.2020, 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: Skirts and divided skirts: Of synthetic fibers: Other: Girls'." The rate of duty will be 16.7 percent ad valorem. The textile category designation is 642.

Based upon international textile trade agreements products of Hong Kong 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 this ruling, please contact National Import Specialist Martin Weiss at 212-466-5881 or George Barth at 212-466-5884.

Sincerely,

Robert B. Swierupski
Director,

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