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HQ 964623




March 1, 2001

CLA-2: RR:CR:TE 964623 ASM

CATEGORY: CLASSIFICATION

TARIFF NO.: 6204.53.3020

Ma. Roseni M. Alvero
Commercial Attache
Embassy of the Philipines
Philippine Trade and Investment Center
1600 Massachusetts Ave., NW
Washington, D.C. 20229

RE: Request for Binding Ruling; “Ballerina Princess Gift Set”; Articles of Fancy Dress; Subheading 6104.53.2020, HTSUSA

Dear Ma. Roseni M. Alvero:

This is in response to your request dated October 29, 2000, concerning the classification under the Harmonized Tariff Schedule of the United States Annotated of an article identified as the “Ballerina Princess Gift Set.” A sample has been provided with the request.

FACTS:

The “Ballerina Princess Gift Set” consists of a child’s size tutu and tiara, which are packaged together for retail sale at the time of importation. The pink tutu is constructed of a double layer of 100 percent polyester “net” tulle fabric (not knit), which has been gathered at the waist. After carefully examining the tulle under a linen tester optical magnifying glass we have determined that the fabric is of “net” tulle construction which forms an open mesh with the warp and is distinctly different from a tulle fabric of “knit” construction. The waistband consists of a woven pink ribbon that has been folded in half and sewn to the tulle so as to form a tunnel. Elastic has been threaded through the ribbon tunnel and sewn in back to secure it to the waistband. A small pink ribbon rosette and matching bow embellishes the front of the tutu at the waist. There is a split at the back of the tutu where the fabric ends overlap; there is no seam to close the back of the tutu. There is no hem on the tutu. The tiara consists of two silver plastic pieces, one decorative and one plain band, that clip together to secure it to the head.

ISSUE:

What is the proper classification for the merchandise?

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). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative Section or Chapter Notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the heading and legal notes do not otherwise require, the remaining GRI may then be applied. 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. The EN, although not dispositive, are used to determine the proper interpretation of the HTSUSA by providing a commentary on the scope of each heading of the HTSUSA. See, T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

In classifying this merchandise, we must consider three headings:
heading 9503 HTSUSA, which covers certain toys, i.e., dress-up sets; heading 9505, HTSUSA, which covers, among other things, festive articles but excludes “fancy dress” of textile materials; and heading 6104, HTSUSA, which covers, among other things, skirts, including articles of “fancy dress” of textile materials.

Heading 9503, HTSUSA, provides for “Other toys”. The EN to chapter 95, states that the chapter covers toys of all kinds whether designed for the amusement of children or adults. It has been well established that Customs classifies certain dress-up sets as toys under subheading 9503.70, HTSUSA, when the set provides amusement for children by enabling them to act or role-play as grown-ups. In HQ 958061, dated October 3, 1995, Customs listed categories and examples of dress-up sets to include: Cowboy (gun, badge, and bandana); Nurse (stethoscope, thermometer); Pretty-lady (jewelry, feather boa); Bride (veil, bouquet). See, also, 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); New York Ruling (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 a tiara and two wrist bands).

As illustrated in the aforementioned rulings, dress-up sets classifiable in subheading 9503, HTSUSA, do not form costumes nor are the textile items contained in these sets generally recognizable as wearing apparel or articles of fancy dress. 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. Furthermore, in NY B86522, dated August 26, 1997, it was determined that inclusion of a wearing apparel item will exclude merchandise from classification as toy dress-up sets under heading 9503, HTSUSA. In HQ 962232, dated November 9, 2000, we noted that “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.” The ruling goes on to state that when dress-up sets 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, the set will be classified following the analysis for costumes.

In the subject case, the “Ballerina Princess Gift Set” includes an item of wearing apparel, i.e., the textile ballet skirt, which is of primary importance in defining the character of this set. When viewing the set as a whole, the skirt clearly suggests that the articles are to be used for ballet dancing. Therefore, it is our determination that the subject merchandise would be excluded from classification as a dress-up set under heading 9503, HTSUSA. Furthermore, it is our determination that the ballerina tutu taken together with the tiara has the completeness to create a costume. This is consistent with our decision in HQ 962232, where a set identified as the “Dazzling Dreams Costume” consisting of a knit tutu and plastic tiara was classified pursuant to GRI 3(b) as a girl’s skirt under 6104.53.2020, HTSUSA. In reaching this decision, Customs found that the items were not classifiable as a toy dress-up set under heading 9503, HTSUSA, and that the ballerina tutu taken with the tiara had the completeness to create a costume. Therefore, we must now consider whether or not the subject costume is properly classifiable as a “festive article” under heading 9505, HTSUSA.

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, excludes articles of “fancy dress, of textiles, of chapter 61 or 62” from classification in chapter 95. The EN to 9505, states, among other things, that the heading covers:

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.

Pursuant to Note 1(e), chapter 95, HTSUSA and the EN to 9505, in order to make a determination as to whether the subject costume is a “festive article” classifiable in chapter 95, we must first consider if the textile ballet skirt would exclude the merchandise from classification under heading 9505, HTSUSA, as an article of “fancy dress of textiles, of chapter 61 or 62.” Customs makes the distinction between costumes of chapter 95 (festive articles) and costumes of chapters 61 and 62 (articles of fancy dress), by separately identifying characteristics in each article that would reveal whether or not it is of a flimsy nature and construction, lacking in durability, and generally recognized as a normal article of apparel. See HQ 960805, dated August 22, 1997.

As we have stated in HQ 962232, Costumes classified in chapter 61 or 62 HTSUSA, are well made and durable and feature the finishing touches found on wearing apparel that allows them to be reusable. Furthermore, it was noted in HQ 962232, that “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 other words, when classifying costumes, what constitutes a “normal article of apparel” is that which has been designed for multiple wear and cleaning.

The “Ballerina Princess Gift Set” features a pink tutu made of 100 percent polyester tulle. Although the tulle skirt has a raw edged hemline and no back seam (leaving the overlapping panels with raw edges), the tulle’s net polyester construction makes it extremely durable and relatively impervious to wear or fray on the raw edges. In fact, the raw edges are appropriate to the styling features commonly identified in the ballerina tutu giving it a soft appearance at the hemline. Furthermore, the double layer of tulle is gathered at the waistband which gives the skirt an enhanced fullness which is also a styling effect commonly seen in the ballerina tutu. The folded over ribbon waistband, which forms a tunnel through which elastic is threaded, has been securely sewn to the gathered net tulle at the waistband with a folded over (not a raw edged) seam to close the back of the tunnel waistband. The satin rosette and ribbon are securely sewn to the front of the waistband. These finishing touches impart style and durability to the tutu rendering it a well-made article that is clearly reusable over a period of time. Ballet skirts and tutus of this quality have been consistently classified as fancy dress/wearing apparel in chapter 61 or 62, HTSUSA. See HQ 962232, dated November 9, 2000; HQ 960805, dated August 22, 1997; HQ 958061, dated October 3, 1995; NY C87719, dated May 22, 1998; NY B89328, dated October 1, 1997; NY B86522, dated August 26, 1997; NY B86761, dated August 20, 1997; NY B83427, dated June 17, 1997.

If imported separately, the plastic tiara would be classifiable in chapter 65 because it is of a type which fastens securely to the head, and is sufficiently ornate and durable to be used for a dance performance rather than just as a toy (chapter 65, Note 1(c), excludes “’dolls hats’, other toy hats or carnival articles of Chapter 95”). The articles of this set are prima facie classifiable in two separate headings and have been put up in a set for retail sale, GRI 3(b) is applicable. GRI 3(b) states that the goods

“shall be classified as if they consisted of the material component which gives them their essential character.” Customs believes that the garment generally imparts the essential character of costumes consisting of a single garment with an accessory since without the garment you would merely have a collection of accessory items. See HQ 959064, dated June 19, 1997. In the subject case, the tutu is the garment which imparts the essential character to the set. Thus, pursuant to GRI 3(b) , the “Ballerina Princess Gift Set” is properly classified under subheading 6204, HTSUSA.

Finally, it is important to note that we have carefully examined the tulle under a linen tester optical magnifying glass and determined that the fabric was of net tulle construction as defined by the EN for heading 5804, which provides diagrams and defines “tulle” and other “net” fabrics as: “warp threads with weft threads which twist round each warp thread and run diagonally from selvedge to selvedge, half the weft being inclined in one direction and the other half inclined in the other direction. These wefts form an open mesh with the warp; the meshes may be in regular hexagonal form, square, or diamond shaped (Neuville net). Another variety of tulle in hexagonal form (Mechelin net) consists of warp threads and a system of bobbin threads which pass longitudinally between two warp threads only”. Inasmuch as the ballerina tutu is constructed of a special “net”, not “knit” tulle fabric, the skirt is classifiable in heading 6204, HTSUSA, because heading 6104, HTSUSA, only provides for “knitted or crocheted” articles as specified in the heading.

In view of the foregoing, it is our determination that the subject costume is excluded from classification as a “festive article” under 9505, HTSUSA, because the ballet skirt is an article of “fancy dress of textile materials of chapter 62.” Thus, the tutu and tiara are properly classifiable, pursuant to a GRI 3(b) analysis, as a girl’s skirt under heading 6204, HTSUSA.

HOLDING:

The subject merchandise is correctly classified in subheading 6204.53.3020, 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): Skirts and divided skirts: Of synthetic fibers: Other: Other, Girls’.” The general column one duty rate is 16.4 percent ad valorem. The textile 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 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.

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

Sincerely,

John Durant, Director

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