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NY J88550




October 1, 2003

CLA-2-62:RR:NC:3:353 J88550

CATEGORY: CLASSIFICATION

TARIFFNO.:6204.43.4040, 6114.30.1020, 6104.63.2011, 9503.90.0080, 9004.10.0005, 5609.00.4000

Mr./Ms. Adrian Dawson
Kmart Corp.
3100 West Big Beaver Rd.
Troy MI 48084-3163

RE: The tariff classification of costumes from China.

Dear Mr./Ms. Dawson:

In your letter dated August 26, 2003 you requested a classification ruling. The samples will be returned to you as requested.

Four samples of children’s costumes were submitted with your request, called assortment #667335. The assortment consists of styles 21357, 21358, 21359 and 21360.

Style 21357, Beauty Queen Costume Set consists of a long dress, marabou boa, sash, clip on earrings and tiara. The flimsy non-durable strapless dress is made of woven man-made fiber fabric with an overlay of net fabric at the front. There is a single elastic stitching at the waist and across the bodice.

Style 21358, Pop Star Costume consists of flimsy top, pants, sunglasses and microphone. The knit man-made fiber fabric, halter style top has marabou feather trim and has four ribbon closures. The pants have a elastic waistband and marabou feather trim at the bottom. The pant are made of knit man-made fiber at the front and woven fabric at the back.

Style 21359, Movie Star Costume Set consists a dress, wrap, purse and sun glasses. The flimsy, non- durable dress is made of knit man-made fiber fabric with faux sequins. It has a halter style top, single stitched elastic waist and fringe at the bottom.

Style 21360, Cheer Leader Costume consists of a flimsy top, skirt, hair scrunchie, pom poms and whistle. The sleeveless top, skirt and scrunchie are made of knit man-made fiber fabric. The flimsy non-durable top has a full back opening with fabric ties and over lock stitching at the arm holes, neck and bottom. The skirt has a tunnel waist, fabric ties, raw edge and over lock stitched hem. The pom poms are constructed of metalized strip not exceeding 5mm in width. These strips meet the tariff definition of textile. The strips are held together in the center by adhesive and wire. The wire is inserted into the handle.

When the HTS was written, it removed textile costumes from classification within Chapter 95 by operation of Note 1 (e). Further, the remaining costumes (not of textile) were moved from the toy provision (where it had been in TSUSA) to the festive, carnival and other entertainment Heading (9505). At the same time, the following language was included in the Explanatory Notes for 9503.70:

“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”

Because of that history, Customs concluded that outfits of 9503.70 are for role-play. The necessary “tools of the trade” are all that is needed to create the activity, work, or profession the child is imitating. These “tools” are frequently toys such as weapons, wands, fake make-up, or high heels. However, they can be non-toy articles such as imitation jewelry, make-up, and other gown-up items. Outfits of 9503.70 can not contain wearing apparel.

GRI 3(b) is applicable when goods are, prima facie, classifiable under two or more headings, and have been put up in sets for retail sale. GRI 3(b) states that the goods “shall be classified as if they consisted of the material or component which gives them their essential character.” In this case, the dress for styles 21357, Beauty Queen Costume and 21359, Movie Star Costume imparts the essential character of the set.

Styles 21358, Pop Star Costume and 21360, Cheer Leader Costume consists of two garments, style 21358, a top and pants, style 21360 a top and skirt. Note 13 of Section XI, of the HTSUSA, 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 that may be packaged with the garments must also be classified separately.

The applicable for the style 21357, Beauty Queen Costume Set will be 6204.43.4040, Harmonized Tariff Schedule of the United States (HTS), which provides for “Women’s or girls’dresses, skirtstrousersDresses: Of synthetic fibers: Other: Other, Girls’.” The duty rate will be 16.3% ad valorem. The textile category designation is 636.

The applicable subheading for style 21359, Movie Star Costume Set will be 6104.43.2010, Harmonized Tariff Schedule of the United States (HTS), which provides for “Women's or girls' suitsblazers, dresses, skirtsknitted or crocheted : Dresses: Of synthetic fibers: Other.” The duty rate will be 16.1% ad valorem. The textile category designation is 636.

The applicable subheading for the tops, style 21358, Pop Star Costume and style 21360, Cheer Leader Costume will be 6114.30.1020, Harmonized Tariff Schedule of the United States (HTS), which provides for “Other garments, knitted or crocheted: Of man-made fibers: Tops, Women’s or girls’.” The duty rate will be 28.4% ad valorem. The textile category designation is 639.

The applicable subheading for the pants, style 21358, Pop Star Costume will be 6104.63.2028, Harmonized Tariff Schedule of the United States (HTS), which provides for “Women’s or girls’trousersknitted or crochetedTrousersOf synthetic fibers: Other: Other, Trousers and breeches: Girls’: Other: Other.” The duty rate will be 28.4% ad valorem. The textile category designation is 648.

The applicable subheading for the skirt, style 21360, Cheer Leader Costume will be 6104.53.2020, Harmonized Tariff Schedule of the United States (HTS), which provides for “Women’s or girls’skirtsknitted or crocheted: Skirts and divided skirts: Of synthetic fibers: Other, Girls’.” The duty rate will be 16.1% ad valorem. The textile category designation is 642.

The applicable for the faux microphone, style 21358, Pop Star Costume will be 9503.90.0080, 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. The rate of duty will be free.

The applicable subheading for the sunglasses, style 21358, Movie Star Costume will be 9004.10.0000, Harmonized Tariff Schedule of the United States (HTS), which provides for spectacles, goggles, and the like, corrective, protective or other; sunglasses. The rate of duty will be 2% ad valorem.

The applicable subheading for the whistle will be 9208.90.00, HTS, which provides for whistles, call horns and other mouth-blown sound signaling instruments. The rate of duty will be 5.3% ad valorem.

The applicable subheading for the pom poms will be 5609.00.4000, Harmonized Tariff Schedule of the United States (HTS), which provides for "Articles of yarn, strip or the like of heading 5404 or 5405, twine, cordage, rope or cables, not elsewhere specified or included: Other." The rate of duty will be 4.3% ad valorem.

This merchandise is being classified in accordance with the Court of International Trade decision in Rubie's Costume Company v. United States, 196 F. Supp. 2d 1320 (2002). The case has been appealed and the United States Court of Appeals for the Federal Circuit has issued a decision, App.No. 02-1373, on August 1, 2003, which will not be implemented until the end of the appeal period. See 19 CFR 176.31(b). The merchandise will be exempt from export visa and quota requirements until further notice. See Federal Register, June 25, 2002 (Volume 67, Number 122, Page 42760).

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 646-733-3053.

Sincerely,

Robert B. Swierupski
Director,

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