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HQ 963428




February 15, 2000

CLA-2 RR:CR:TE 963428 jb

CATEGORY: CLASSIFICATION

TARIFF NO.: 6404.19.3580

Mr. Michael McKenna
Ms. Michele Hayes
Expeditors Tradewin, LLC
1015 Third Avenue, 12th Floor
Seattle, Washington 98104

RE: Classification of “Hello Kitty” Princess Ballet Slippers

Dear Mr. McKenna and Ms. Hayes:

This is in response to your letter, dated July 29, 1999, on behalf of your client, Colorbok Paper Products, Inc., regarding the classification of, among other things, certain slippers for children. A sample was submitted to this office for review.

FACTS:

On August 25, 1999, our New York office issued to you New York Ruling Letter (NY) E84196, which addressed the classification of a “Hello Kitty” Princess top, skirt, tutu, gloves and slippers from Hong Kong. Although that ruling reached a classification determination for the top, skirt, tutu and gloves, the classification for the slippers was not given, and was instead sent to our office for review. As such, this letter will only discuss the classification of the slippers.

The merchandise at issue, referred to as “Hello Kitty” Princess Ballet Slippers, are comprised of a 100 percent polyester knit fabric upper with 100 percent polyester terry lining and 100 percent vinyl soles. The slippers feature decorative glued on marabou feathers and plastic “Hello Kitty” face. Although your letter states that the slippers tie at the top with ribbon of 100 percent woven nylon bearing the words “Hello Kitty”, the sample provided does not have tie ribbons on top. Instead, a narrow ribbon is glued in at the top which bears no writing. The slippers are held on the foot by an elastic band sewn in along the top opening.

We note that although the various “Hello Kitty” samples which were the subject of NY E84196 were manufactured in Hong Kong, the slippers we have received for our review are marked “Made in Taiwan.”

In your submission you state that:

Each of the above stated costume components includes a care tag stating that the article is “For Play Use Only.” These tags also instruct that in order to properly care for the articles, “Do Not Wash or Dry Clean.” The tags also state that the costume components are only sold in one size. Each article includes a header board advertising their fantasy play purpose (i.e. “Live in a big magical castle in the sky”).

It is your opinion that the subject merchandise is “used in the same manner as other festive articles: for occasional fantasy play, and/or for festive occasions such as Halloween.” As such, you conclude that the subject slippers are appropriately classified as “festive entertainment articles”, in chapter 95, HTSUS.

ISSUE:

What is the appropriate classification for the subject merchandise?

LAW AND ANALYSIS:

Classification of merchandise under the Harmonized Tariff Schedule of the United States (HTSUS) is governed by the General Rules of Interpretation (GRI). GRI 1 requires that classification be determined according to the terms of the headings and any relative section or chapter notes, taken in order. Where goods cannot be classified solely on the basis of GRI 1, the remaining GRI will be applied, in the order of their appearance.

There are two plausible classifications for the subject merchandise. Heading 9505, HTSUS, which provides for, among other things, festive, carnival or other entertainment articles, and heading 6404, HTSUS, which provides for, among other things, footwear with outer soles of rubber or plastics.

In Midwest of Cannon Falls, Inc. v. United States, Court No. 92-03-00206, 1996 Ct. Int'l Trade LEXIS 15 (Ct. Int'l. Trade, January 18, 1996), and 122 F.3d 1423 (Fed.Cir. 1997) (hereinafter Midwest), the Court addressed the scope of heading 9505, HTSUS, specifically, the class or kind "festive articles." It then applied its conclusions to 29 specific articles to determine whether they were included within the scope of the class "festive articles." This application provided new guidelines for the classification of "festive articles." In general, merchandise is classifiable in heading 9505, HTSUS, as a "festive article" when the article, as a whole:

1. Is not predominately of precious or semiprecious stones, precious metal or metal clad with precious metal;

2. Functions primarily as a decoration or functional item used in celebration of and for entertainment on a holiday; and

3. Is associated with or used on a particular holiday.

The Explanatory Notes to the Harmonized Commodity Description and Coding System (EN) to heading 9505, state, in pertinent part:

This 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.

As we stated in HQ 087336, dated August 28, 1990, classifying certain “Disney Mickey Footlights Slippers”:

.We consider toy footwear in Chapter 95, HTSUSA, to be doll's shoes, dress up shoes and items which would not be useful or saleable if the amusing and playful additions were not present. The Disney Mickey Footlights are not doll or dress up shoes and are usable and saleable without the figure of Mickey Mouse and the headlights.

Furthermore, the instant merchandise is not chiefly used for the amusement of children or adults and any amusement derived from the Mickey Mouse configuration is incidental to the product's primary function, which is to serve as footwear. The Disney Footlights are functional slippers with a toy design feature. As a result, the Disney Mickey Footlights are not classifiable in Chapter 95, HTSUSA, and are properly classifiable as footwear in Chapter 64, HTSUSA.

Similarly, in the case of the subject merchandise, we find no evidence supporting the claim that the slippers at issue are to be solely used in celebration of and for entertainment on a holiday, or that any functional footwear is a symbol of, associated with or used on a particular recognized holiday. Furthermore, the subject slippers, although marketed as costume/dress-up wear, are made of a very durable construction and are fully functional as footwear, regardless of how decorated.

The subject “Hello Kitty” slippers are distinguishable from the slippers which were the subject of NY C80677, dated November 4, 1997, and PD C87051, dated May 13, 1998, in that the merchandise addressed in NY C80677 and PD C87051 were of flimsy construction and not capable of functional use. Unlike the subject slippers, they were not lined, and did not have a means by which the slipper could be held onto the foot. As such, the subject slippers are not classifiable in heading 9505, HTSUS.

Chapter 64, Note 1(f) states that this chapter does not cover toy footwear. As we have already determined that the subject merchandise, by its design and construction, is precluded from classification as “toy footwear”, we can proceed in our analysis. Note 4(a) to chapter 64 states that “[t]he material of the upper shall be taken to be the constituent material having the greatest external surface area, no account being taken of accessories or reinforcements such as ankle patches, edging, ornamentation, buckles, tabs, eyelet stays or similar attachments.” Note 4(b) to chapter 64 states that “[t]he constituent material of the outer sole shall be taken to be the material having the greatest surface area in contact with the ground, no account being taken of accessories or reinforcements such as spikes, bars, nails, protectors or similar attachments.” The EN to chapter 64, HTSUS, state that the outer sole is the part of the footwear which, when in use, is in contact with the ground. As the subject merchandise is composed of an upper of 100 percent polyester fabric and an outer sole of 100 percent vinyl, the appropriate classification for this merchandise is in heading 6404, HTSUS, as footwear with outer soles of rubber or plastics and uppers of textile materials.

HOLDING:

The subject “Hello Kitty” Princess slippers are correctly classified in subheading 6404.19.3580, HTSUSA, which provides for, footwear with outer soles of rubber, plastics, leather or composition leather and uppers of textile materials: footwear with outer soles of rubber or plastics: other: footwear with open toes or open heels; footwear of the slip-on type, that is held to the foot without the use of laces or buckles or other fasteners, the foregoing except footwear of subheading 6404.19.20 and except footwear having a foxing or foxing-like band wholly or almost wholly of rubber or plastics applied or molded at the sole and overlapping the upper: other: other: for other persons. The applicable general column one rate of duty is 37.5 percent ad valorem.

Due to the changeable nature of the statistical annotation (the ninth and tenth digits of the classification) and the restraint (quota/visa) categories, your client should contact the local Customs office prior to importing the merchandise to determine the current status of any import restraints or requirements.

Sincerely,

John Durant, Director
Commercial Rulings Division

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