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NY C87718




May 27, 1998

CLA-2-61:RR:NC:3:353 C87718

CATEGORY: CLASSIFICATION

TARIFF NO.: 6104.53.2020, 6109.90.1070, 6117.80.8500, 9615.19.6000, 3926.20.9050, 9503.90.0045, 9208.90.0080

Kim Young
BDP International Inc.
2721 Walker NW
Grand Rapids, MI 49504

RE: The tariff classification of a Deluxe Cheerleader Set costume from China.

Dear Mr/Ms. Young:

In your letter of May 5, 1998, on behalf of Meijer, Inc., you requested a classification ruling. A sample was submitted for examination and is being returned at your request.

The submitted sample, an item number 862303 Deluxe Cheerleader Set consists of a skirt, tank top, hair scrunchie, headband, two shoe poms, baton, two pom poms, whistle and a pennant which can be cut out of the packaging.

The knit polyester skirt consists of six panels, four red and two white, of which two front panels are white with a middle red panel. There is a hidden elastic waist, single stitch sewn side seam and a sewn hem.

The knit polyester tank top consists of two red panels with a single stitch sewn side seam, single stitch sewn contrasting white piping around the neck and arm openings and a straight cut unfinished bottom.

The accessories consist of seven items. The knit polyester scrunchie is white and is designed primarily to hold the hair in place. The knit polyester headband is a rigid headband of white textile material that covers a plastic insert. The shoe poms consists of red an silver plastic strips shaped like a pom pom that are attached to a plastic fastener that can be affixed to a shoe. The blue and red toy baton is made of plastic. The pom poms consist of approximately 12 inch long red and silver plastic strips attached to a white plastic handle. The whistle is of blue and white plastic attached to a white polyester cord with a simple plastic open and close mechanism so it can be placed around the neck. The pennant is cardboard and is part of the packaging of the set and must be cut out to be used.

ISSUE:

Whether the costumes are festive articles of chapter 95 or articles of fancy dress, of textiles, 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 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 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 skirt has a hidden elastic waist, a single stitch sewn side seam and a sewn hem, the tank top has a single stitched sewn side seam and single stitch sewn contrasting white piping around the neck and arm openings. 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 item number 862303 Deluxe Cheerleader Set 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 accessories must also be classified separately.

The applicable subheading for the knit polyester 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 duty rate will be 16.6% ad valorem. The textile category designation is 642.

The applicable subheading for the knit polyester tank top will be 6109.90.1070, Harmonized Tariff Schedule of the United States (HTS), which provides for "T-shirts, singlets, tank tops and similar garments, knitted or crocheted: Of other textile materials: Of man-made fibers...Women's or girls': Tank tops and singlets: Girls'." The rate of duty will be 33.2% ad valorem. The textile category designation is 639.

The applicable subheading for the knit polyester scrunchie will be 6117.80.8500, 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: Headbands, ponytail holders and similar articles." The rate of duty will be 15.1% ad valorem.

The applicable subheading for the rigid headband will be 9615.19.6000, Harmonized Tariff Schedule of the United States (HTS), which provides for "Combs, hair-slides and the like; hairpins, curling pins, curling grips, hair-curlers and the like, other than those of heading 8516, and parts thereof: Combs, hair-slides and the like: Other: Other." The rate of duty will be 11% ad valorem.

The applicable subheading for the shoe poms will be 3926.20.9050, Harmonized Tariff Schedule of the United States (HTS), which provides for "Other articles of plastics and articles of other materials of headings 3901 to 3914: Articles of apparel and clothing accessories (including gloves): Other: Other...Other." The rate of duty will be 5% ad valorem.

The applicable subheading for the baton and pom poms will be 9503.90.0045, Harmonized Tariff Schedule of the United States (HTS), which provides for "Other toys; reduced-size ("scale") models and similar recreational models, working or not; puzzles of all kinds; parts and accessories thereof: Other...Other toys and models." The rate of duty will be free.

The applicable subheading for the plastic whistle will be 9208.90.0080, Harmonized Tariff Schedule of the United States (HTS), which provides for "Music boxes, fairground organs, mechanical street organs, mechanical singing birds, musical saws and other musical instruments not falling within any other heading of this chapter; decoy calls of all kinds; whistles, call horns and other mouth-blown sound signaling instruments: Other...Other." The rate of duty will be 5.3%

The pennant is an integral part of the packaging and is not separately classifiable, but considered packing.

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 S. Swierupski
Director,

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