United States International Trade Commision Rulings And Harmonized Tariff Schedule
faqs.org  Rulings By Number  Rulings By Category  Tariff Numbers
faqs.org > Rulings and Tariffs Home > Rulings By Number > 2003 HQ Rulings > HQ 966106 - HQ 966190 > HQ 966158

Previous Ruling Next Ruling
HQ 966158




March 20, 2003

CLA-2 RR:CR:TE 966158 JFS

CATEGORY: CLASSIFICATION

TARIFF NO.: 6211.43.0091

Mr. Darrell J. Sekin Jr.
DJS International Services, Inc.
P.O. Box 612785
DFW Airport, Texas 75261

RE: Bee Costume With Safety Lights

Dear Sir:

This is in response to your request for a binding ruling, dated December 11, 2002, regarding the classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) of a bee costume manufactured in China.

FACTS:

The article under consideration is a Halloween costume referred to as a Flashing Safety Light Inflatable Bee Costume. It is constructed of an outer shell of woven nylon fabric. The costume is secured around the neck, wrists and ankles by means of hook and loop strips that act as closures. The costume is inflated by means of a small battery-operated fan housed within the costume. The costume features flashing lights sewn into the collar and chest that are powered by battery packs. The costume is packaged in a cardboard box that states that it is a “Safety Inflatable Costume” that Self-Inflates, “Lights Up for Safety,” and has “Safety Flashing Lights.” The rear of the box will have a picture of a child adorned in the costume, accompanied by an adult, at a crosswalk, in the dark.

ISSUE:

Whether the inflatable bee costume with safety lights is classified as a visual signaling device, or as an article of clothing.

LAW AND ANALYSIS:

Classification under the 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 headings and legal notes do not otherwise require, the remaining GRI may then be applied.

The Harmonized Commodity Description and Coding System Explanatory Notes (EN’s) represent the official interpretation of the Harmonized System at the international level (for the 4 digit headings and the 6 digit subheadings) and facilitate classification under the HTSUSA by offering guidance in understanding the scope of the headings and GRI. The EN’s, although not dispositive or legally binding, provide a commentary on the scope of each heading of the HTSUSA, and are generally indicative of the proper interpretation of these headings.

The costume is composed of three separate components, the woven nylon fabric garment, the electric fan, and the safety lights. The woven garment is classifiable in subheading 6211.43.0091, HTSUSA, which provides for: “Track suits, ski-suits and swimwear; other garments: Other garments, women’s or girls’: Of man-made fibers, Other.”

Due to the durable construction of the costume, there is no issue as to whether the costume is classified as a festive article in Chapter 95, HTSUSA.

The fan that inflates the costume is classifiable in subheading 8414.59.6090, HTSUSA, which provides for: “Air or vacuum pumps, air or other gas compressors and fans; ventilating or recycling hoods incorporating a fan, whether or not fitted with filters; parts thereof: Fans: Other: Other: Other, Other: Axial.”

The safety lights are classifiable in subheading 8531.80.0050, HTSUSA, which provides for: “Indicator panels incorporating liquid crystal devices (LCD’s) or light emitting diodes (LED’s), Other apparatus, Other.”

No single heading within the HTSUSA specifically describes the instant article. Because the merchandise cannot be classified pursuant to GRI 1, we apply the remaining applicable GRI in their appropriate order. GRI 2(b) provides that any reference in a heading to a material or substance shall be taken to include a reference to mixtures or combinations of that material or substance with other materials or substances. However, GRI 2(b) adds that the classification of goods consisting of more than one material or substance shall be according to the principles of rule 3. Accordingly, GRI 3 is utilized when, by application of GRI 2(b), a good consists of materials or substances, which are prima facie classifiable under two or more headings.

Neither the textile provision nor the electrical provisions encompass the article in its entirety. Because it consists of a combination of materials and components which are prima facie classifiable under two or more headings, we are directed by the GRI to classify the article pursuant to GRI 3 which states:

(a) The heading which provides the most specific description shall be preferred to headings providing a more general description. However, when two or more headings each refer to part only of the materials or substances contained in mixed or composite goods or to part only of the items in a set put up for retail sale, those headings are to be regarded as equally specific in relation to those goods, even if one of them gives a more complete or precise description of the goods.

Because the lights, fan and garment can each be classified in a different heading, we are required to continue to the next rule, i.e., GRI 3(b):

(b) Mixtures, composite goods consisting of different materials or made up of different components, and goods put up in sets for retail sale, which cannot be classified by reference to 3(a), shall be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable.

The EN to GRI 3(b) state, in part:

(VII) In all these cases the goods are to be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable.

(VIII) The factor which determines essential character will vary as between different kinds of goods. It may, for example, be determined by the nature of the material or component, its bulk, quantity, weight or value, or by the role of a constituent material in relation to the use of the goods.

It is the textile component of the instant article that gives the costume its essential character. The article will be used, not for its safety features, but because it is a bee costume to be worn for Halloween. The safety lights make the costume more desirable to parents who are concerned about their child’s safety while trick-or-treating in the dark. However, the fact remains that the article will be purchased as a costume first and foremost. It is highly unlikely that a parent, concerned about their child walking at night, would purchase the instant article for use at some time other than Halloween. The article is not practical for everyday use as a safety device. Likewise, the role and value of the fan is, at best, secondary to that of the costume. The fan does not impart the essential character, but acts as a feature of the costume, causing it to inflate and make the wearer look more bee-like. Accordingly, Customs finds that the essential character is imparted by the textile component of the costume, and the article is classified accordingly.

You contend that the article cannot be classified in accordance to GRI 3(b), and should be classified pursuant to GRI 3(c) instead. GRI 3(c) provides:

When goods cannot be classified by reference to 3(a) or 3(b), they shall be classified under the heading which occurs last in numerical order among those which equally merit consideration.

However, classification of the instant article is resolved by application of GRI 3(b). Therefore, classification pursuant to GRI 3(c) is precluded.

In Headquarters Ruling Letter (HQ) 964384, dated December 4, 2000, Customs individually classified a safety pet collar, safety vest, safety belt, and a flashing armband, in subheading 8531.80.9050, HTSUSA, the provision for signaling apparatus. (See also HQ 964544, dated December 4, 2002.) Customs made this determination after first concluding that the potential tariff provisions failed to adequately describe the articles. Customs further found that there was not one component that imparted the essential character to any of the individual, multi-component goods. Accordingly, Customs classified each of the articles by application of GRI 3(c). In coming to this conclusion, Customs reasoned as follows:

The subject safety articles incorporate a visual signaling device, developed by Illumination Polymer Technologies, Inc., using a technology that radiates and reflects light and needs a miniscule amount of electric current to operate. The light source increases the overall retail value of the safety articles and supports consideration of the light source. The light uses a lens that magnifies, disperses and radiates a light source throughout that product. The lighting unit can be switched for constant or rapid flashing light. The lighted wearer is visible from a longer distance than someone who is wearing a “regular” safety product, i.e., a safety vest or pet collar without a self contained light source.

Although a consumer would perhaps purchase these particular safety products specifically for the added feature of the
lighting unit, Customs must also give consideration to the fact that these safety products appear to the naked eye to be virtually identical to other safety products that do not have a lighting unit. The safety vest, arm band, pet collar and belt remain functional as an identifier and will provide a greater degree of visibility during the daytime even when the lighting unit is not in operation. It is only when you activate the lights that the items have a different quality and therefore, essential character determination cannot readily be made pursuant to GRI 3(b).

Thus, the goods essentially had two different characters. During the day, when their lights were not activated, they took on the character of the underlying apparel article, collar, or armband. At night, because of the high degree of illumination provided by the lights, the articles took on the character of the lights. As a result, the component that determined classification depended upon whether the articles were worn during the day or during the night. In contrast, the instant bee costume retains its identity as a bee costume, regardless of whether it is worn in the light or the dark.

HOLDING:

The bee costume is classified in subheading 6211.43.0091, HTSUSA, which provides for: “Track suits, ski-suits and swimwear; other garments: Other garments, women’s or girls’: Of man-made fibers, Other.” The general column one rate of duty is 16.1 percent ad valorem and the textile quota category is 359.

The designated textile and apparel category may be subdivided into parts. If subdivided, any quota and visa requirements applicable to the subject merchandise may be affected. Since part categories are the result of international bilateral agreements which are subject to frequent negotiations and changes, to obtain the most current information available, we suggest your client 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 updated weekly and is available for inspection at your local Customs Service office. The Status Report On Current Import Quotas (Restraint Levels) is also available on the Customs Electronic Bulletin Board (CEBB) which can be found on the U.S. Customs Web site at www.customs.gov.

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 importation of this merchandise to determine the current status of any import restraints or requirements.

Sincerely,

Myles B. Harmon, Director
Commercial Rulings Division

Previous Ruling Next Ruling

See also: