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HQ 965455

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April 18, 2002

CLA-2 RR:CR:TE 965455 RH

CATEGORY: CLASSIFICATION

TARIFF NOS: 6104.53.2020; 6204.53.3021; 6114.30.3070; 6117.80.9540; 6217.10.9530; 7117.90.5500; 7117.90.7500; 9503.90.0080; 6505.90.8090

Mr. Mark E. Tasman
President
Peachtree Playthings
2551 Roswell Road
Marietta, GA 30062

RE: Classification of “Dream Dazzlers Deluxe Fashion Trunk”; Rubie’s Costume Company v. United States, Slip Op. 02-13, (Ct. Int’l Trade, Feb. 19, 2002); costumes vs. toys; dress-up sets

Dear Mr. Tasman:

This is in reply to your recent letter concerning the classification of certain “dress-up sets” and the impact the court decision, Rubie’s Costume Company v. United States, Slip Op. 02-13, (Ct. Int’l Trade, Feb. 19, 2002), has on the classification of such merchandise.

FACTS:

Peachtree Playthings is a distributor of children’s dress-up sets and other children’s toy products. Each set consists of a selection of interchangeable one-size-fits-all textile and plastic articles that allow children to play out their fantasies by dressing up in various themes (e.g., bride, princess, ballerina).

The merchandise at issue is a “Dream Dazzlers Deluxe Fashion Trunk.” It consists of a tutu, fancy skirt, royal cape, glitter tiara, shoulder puffs, headband, necklace, bracelet, ballet slippers, long white skirt, floppy hat and storage trunk.

You did not provide component material breakdowns for any of the textile items. Therefore, based on our examination of the merchandise, we assume for purposes of this ruling that the textile articles are made of synthetic material.

The tutu is constructed of knit net fabric and features a decorative overlay, raw lace edge at the bottom, elastic at the waist and hook and loop closure.

The fancy skirt is constructed of two colors of woven fabric that are sewn together, and features an elastic waist and overlock stitch hem.

The long white skirt is constructed of knit fabric and features elastic at the waist, hook and loop closure and a raw hem.

The royal cape is constructed of knit net fabric and features a ribbon tie, elastic at the neck and a pleated edge.

The glitter tiara is triangular in shape, constructed of knit fabric with attached small plastic circles, and held onto the head by a piece of elastic. The headband is constructed of woven fabric, held to the head by elastic and decorated with a textile knit flower. The headband is purely decorative in nature.

The imitation peal necklace and three circular bracelets are constructed of plastic.

The ballet slippers are constructed of woven fabric.

The floppy hat is constructed of a woven fabric crown and a knit net fabric brim.

ISSUE:

What is the proper classification of the merchandise at issue?

LAW AND ANALYSIS:

Classification of goods under the HTSUS is governed by the General Rules of Interpretation (GRIs). GRI 1 provides that classification shall be determined according to the terms of the headings and any relative section or chapter notes. Where goods cannot be classified solely on the basis of GRI 1, the remaining GRIs will be applied.

When interpreting and implementing the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System may be utilized. The ENs, while neither legally binding nor dispositive, provide a guiding commentary on the scope of each heading, and are generally indicative of the proper interpretation of the HTSUS. Customs believes the ENs should always be consulted. See T.D. 89-90, 54 Fed. Reg. 35128 (August 23, 1989).

On February 19, 2002, the Court of International Trade granted Plaintiff’s Motion for Summary Judgement in a lawsuit filed by Rubie’s Costume Company against Customs denial of its Domestic Interested Party Petition concerning the classification of imported textile costumes as “festive articles” within Chapter 95, HTSUS.

In denying the Domestic Interested Party Petition, Customs classified various costumes as festive articles under Chapter 95, HTSUS, finding that they were of a flimsy nature and construction, lacking durability and generally “not recognized as not normal articles of apparel. “ The court agreed with the Plaintiff that the costumes should have been classified as wearing apparel under Chapters 61 or 62, HTSUS.

The dispute in the Rubie’s case revolved around the interpretation of provisions within Chapter 95 and Chapters 61 or 62, HTSUS, specifically what constitutes “fancy dress” of textiles of Chapters 61 or 62.

Chapter 95, HTSUS, covers “Toys, games and sports equipment; parts and accessories thereof," while Chapter 61 covers “Articles of apparel and clothing accessories, knitted or crocheted”, and Chapter 62 covers “Articles of apparel and clothing accessories, not knitted or crocheted.” Note 1(e) to Chapter 95 excludes sports clothing or “fancy dress” of textiles of chapter 61 or 62.

Prior to Rubies, articles of fancy dress were classified under heading 9505, HTSUS, or in chapters 61 or 62, HTSUS, depending on their construction. However, in ruling for the Plaintiff, the court found that the term “fancy dress” undeniably signifies “costume” as worn at Halloween or other similar events and that the criteria of flimsiness applied by Customs was irrelevant. The court held that Halloween costumes are “meant to adorn the human body at a particular time, either on Halloween or at any other event where the wearer desires to “mimic another” and they “fall well within the norm of apparel as it is viewed in the United States; outer garments which provide at least minimal decency and which send the world a message about the wearer through their appearance or use.” The court further stated that the fact that they are “not worn on a daily basis does not negate their inherent nature as clothing.”

You claim that the merchandise in question is distinguishable from the merchandise in Rubie’s in that dress-up sets are not packaged for a particular holiday or special occasion, not displayed or sold in the stores at a particular time of year or in a holiday or seasonal department. They are sold year round and sales are made either to stores dedicated to children’s toys and games or to mass-merchandise retail entities where the products are displayed exclusively in the toy/game departments.

You also claim that the dress-up sets are toys and thus excluded from the wearing apparel provisions by virtue of Note 1(t) to Section XI, HTSUS, which reads:

This section does not cover:

(t) articles of Chapter 95 (for example toys, games, sports requisites and nets).

Furthermore, you claim that unlike the Halloween costumes in Rubie’s, the items at issue are not wearing apparel because they are so sheer as to be see-through and afford virtually no protection against the elements and, for reasons of personal modesty, can only be worn over other outerwear.

Heading 9503, HTSUS, provides for other toys. Although the term "toy", in general, is not specifically defined in the tariff, the EN to chapter 95, HTSUS, 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, HTSUS. A dress-up set amuses children by enabling them to act out or role-play as grown-ups. The Subheading EN to subheading 9503.70 reads:

Subject to substantiated classification in heading 95.03 and for the purpose of this subheading:

(i) “Sets” are two or more different types of articles (principally for amusement), put up in the same packing for retail sale without repacking. Simple accessories or objects of minor importance intended to facilitate the use of the articles may also be included.

(ii) “Outfits” are two or more different articles put up in the same packing for retail sale without repacking, specific to a particular type of recreation, work, person or profession.

The Rubie’s decision does not affect Customs classification of 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 textile costume. In Headquarters Ruling Letter (HQ) 958061, dated October 3, 1995, Customs listed examples of dress-up sets to include:

1. Cowboy: complete with gun, badge and bandanna;

2. Nurse: complete with stethoscope and thermometer;

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

4. 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, HTSUS, 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, HTSUS, consisted of a tiara, veil, lacy cuffs, lacy bouquet, and choker. For other rulings which classify dress-up sets under heading 9503, HTSUS, 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, HTSUS, 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, HTSUS. 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, HTSUS, as opposed to 9505, HTSUS, 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, HTSUS. 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, HTSUS.

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).

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 as in this case (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, HTSUS. 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, HTSUS. 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 principal item was the textile garment.

The principal items in the subject merchandise are the textile garments. Therefore, it is the opinion of this office that the merchandise at issue is excluded from classification as a dress-up set under heading 9503, HTSUS. Unlike the dress-up sets described in the previously mentioned rulings, the subject merchandise does not consist principally of toy items. The ballerina tutu, skirts and royal cape taken together with the tiara have the completeness to create a costume. Furthermore, in accordance with Rubie’s, the tutu, skirts and cape are articles of fancy dress of textiles worn to “mimic another” and excluded from classification in chapter 95, HTSUS, pursuant to Note 1(e), Chapter 95.

Note 13 of Section XI reads:

Unless the context otherwise requires, textile garments of different headings are to be classified in their own headings even if put up in sets for retail sale. For the purposes of this note, the expression “textile garments” means garments of headings 6101 to 6114.

Note 13 of Section XI requires that 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 that may be packaged with the garments must also be classified separately. However, costumes consisting of single garments with accessories do not fall into the purview of Headnote 13. Therefore, single garments with
accessories may be classifiable as sets by application of General Rule of Interpretation 3(b) according to the item in the set from which the set derives its essential character. Customs believes that the essential character of costumes consisting of single garments with accessories is generally imparted by the garment since without the garment you would merely have a collection of accessory items. See HQ 084601, dated September 8, 1989; HQ 082249, dated October 23, 1989; HQ 082173, dated October 2, 1989; HQ 082625, dated July 21, 1989; HQ 084103, dated July 27, 1989.

The ballet slippers are unlike traditional footwear as they are not available in assorted sizes and are made of flimsy construction which would negate any form of practical use. Accordingly, they will be classified under heading 9503, HTSUS, as toys.

Finally, we appreciate your concerns that there is “no time for an appeal process” that would permit the industry distributing dress-up sets to make adjustments under Rubie’s, resulting in extreme hardship on the industry. In that regard, although the merchandise in question is classified in accordance with the Rubie’s decision, it will be exempt from export visa and quota requirements if exported prior to June 1, 2002, and entered for consumption or withdrawn from warehouse for consumption prior to August 1, 2002. See Federal Register, dated March 22, 2002 (Volume 67, Number 56, Pages 13318-13319).

HOLDING:

The Tutu and long skirt are classifiable under subheading 6104.53.2020, HTSUS, which provides for knit skirts of synthetic fibers. The duty rate is 16.2 percent ad valorem and the textile category is 642.

The fancy skirt is classifiable under subheading 6204.53.3020, HTSUS, which provides for other woven skirts of synthetic fibers. The duty rate is 16.2 percent ad valorem and the textile category is 642.

The royal cape is classifiable under subheading 6114.30.3070, HTSUS, which provides for other knit garments of man-made fibers. The duty rate is 15.1 percent ad valorem and the textile category is 659.

The glitter tiara and shoulder puffs are classifiable under subheading 6117.80.9540, HTSUS, which provides for other knit clothing accessories of man-made fibers. The duty rate is 14.8 percent ad valorem and the textile category is 659.

The headband is classifiable under subheading 6217.10.8500, HTSUS, which provides for headbands, ponytail holders and similar articles. The duty rate is 4.9 percent ad valorem.

Depending on their value, the classification of the necklace and bracelets will be under subheading 7117.90.5500, HTSUS, which provides for other imitation jewelry not valued over 20 cents per dozen pieces, or under subheading 7117.90.7500, HTSUS, if valued over 20 cents per dozen pieces. These items are duty free.

The floppy hat is classifiable under subheading 6505.90.8090, HTSUS, which provides for hats and other headwear, not in part of braid, other. It is dutiable at 19.4 cents per kilogram plus 7 percent ad valorem. The textile category is 659.

The ballet slippers are classifiable under subheading 9503.90.0080, HTSUS, which provides for other toys. They are duty free.

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
Commercial Rulings Division

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See also:

• Tariff No.: 6104.53.20 - Women's or girls' skirts and divided skirts, knitted or crocheted, of synthetic fibers, nesoi
• Tariff No.: 6114.30.30 - Garments nesoi, knitted or crocheted, of man-made fibers
• Tariff No.: 6117.80.95 - Made up clothing accessories (excl shawl, scarve, and like, tie, cravat, headband, ponytail holder and like), cont < 70% wt of silk, k/c
• Tariff No.: 6204.53.30 - Women's or girls' skirts and divided skirts, not knitted or crocheted, of synthetic fibers, nesoi
• Tariff No.: 6217.10.85 - Headbands, ponytail holders and similar articles, of textile materials containing < 70% by weight of silk, not knit/crochet
• Tariff No.: 6217.10.95 - Made up clothing accessories (excl of heading 6212 or headbands, ponytail holders & like), containing < 70% wgt of silk, not knit/crochet
• Tariff No.: 6505.90.80 - Hats and headgear, of mmf, made up from felt or o/textile material (but n/knitted or crocheted), not in part of braid
• Tariff No.: 7117.90.55 - Imitation jewelry nesoi, not of base metal, n/o 20 cents/doz. pcs or pts
• Tariff No.: 7117.90.75 - Imitation jewelry of plastics, nesoi, over 20 cents/dozen pcs or pts
• Tariff No.: 9503.90.00 - Toys and reduced scale models neosi and parts and accessories thereof