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HQ 563373




February 13, 2006

CLA-02 RR:CTF:VS 563373 JPP

Port Director
U.S. Customs and Border Protection
6747 Engle Road
Middleburg Heights, OH 44130

RE: Application for Further Review of Protest 4101-05-100212; HTSUS Subheading 9817.00.98; Theatrical Apparel

Dear Port Director:

This is in reference to a Protest and Application for Further Review timely filed by DHL Worldwide Express, Inc. (“DHL”), contesting the tariff classification of imported ladies apparel. We have considered the facts and issues raised by your office and the protestant. Our decision follows.

FACTS:

The protest concerns one entry of merchandise, consisting of ladies jackets, dresses, skirts, trousers, shirts, leotards, headdresses and scarves to be used in a theatrical school performance in the United States. The apparel is described by protestant as “theatrical apparel” and was shipped by the Contemporary Dance Trust Co. (London, U.K.) and entered by DHL on behalf of the New World School of the Arts in Miami, Florida.

According to the Entry Summary (CBP Form 7501), dated March 15, 2004, the subject merchandise was entered for consumption under headings 6104, 6110, 6115 and 6117, Harmonized Tariff Schedule of the United States (“HTSUS”), describing:

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), knitted or crocheted

6110 Sweaters, pullovers, sweatshirts, waistcoats (vests) and similar articles, knitted or crocheted

6115 Panty hose, tights, stockings, socks and other hosiery, including stockings for varicose veins, and footwear without applied soles, knitted or crocheted

6117 Other made up clothing accessories, knitted or crocheted; knitted or crocheted parts of garments or of clothing accessories

In a statement attached to the Protest, the protestant stated that the merchandise was a “shipment of borrowed, theatrical apparel for a performance at New World School of the Arts,” and that the items were “inadvertently entered under chapter 61.” Similarly, the pro forma invoice, dated February 27, 2004, indicates that the apparel was “[t]o be used for school performance” and that the exportation was “temporary.”

The entry was liquidated on February 25, 2005 and the protestant filed this Protest, number 4101-05-100212, on April 20, 2005. The protestant requests a refund of the fees and duties paid in connection with the subject entry. The protestant contends that the theatrical apparel was used in a school performance in the United States and should have been eligible for duty-free entry under subheading 9817.00.98, HTSUS.

ISSUE:

Whether the imported theatrical costumes described above qualify for duty-free entry under subheading 9817.00.98, HTSUS.

LAW AND ANALYSIS:

Initially, we note that the Protest was timely filed within 90 days of the liquidation under the statutory and regulatory provisions for protests (See 19 USC 1514 and 19 CFR Part 174); and classification and rate of duty are matters protestable pursuant to 19 USC 1514(a)(2).

Subheading 9817.00.98, HTSUS, provides that “[t]heatrical scenery, properties and apparel brought into the United States by proprietors or managers of theatrical, ballet, opera or similar productions arriving from abroad for temporary use by them in such productions” will be free of duty. For articles to be classified under subheading 9817.00.98, HTSUS, three specific requirements must be satisfied:

The imported goods must consist of theatrical scenery, properties and apparel; The goods must be brought into the U.S. by proprietors or managers of theatrical, ballet, opera or similar productions arriving from abroad; and The subject goods must be for temporary use by them in such productions.

CBP has ruled on the applicability of subheading 9817.00.98, HTSUS. In Headquarters Ruling Letter (“HRL”) 561472, dated July 21, 2000, CBP concluded that the scenery, costumes and properties imported by a Canadian theatrical production company for use in its theater and touring shows were eligible for entry under subheading 9817.00.98, HTSUS. The Canadian theatrical company qualified as a proprietor of the theatrical productions, and it was advised that it had to establish to the satisfaction of CBP at the port of entry that the merchandise was to be used temporarily in the United States.

Furthermore, in HRL 562339, dated April 1, 2002, CBP considered a protest regarding the tariff classification of costumes that were leased by a Canadian company to theaters, opera companies and educational institutions in the United States. At the end of the rental, the renters would return the costumes to the Canadian company. The protestant was the manufacturer and the lessor of the costumes, but not the manager or proprietor of the performances in the United States. CBP held that, the protestant failed to meet the second criterion for classification under subheading 9817.00.98, HTSUS, which requires that the qualified merchandise be “imported by proprietors or managers of theatrical, ballet, opera or similar productions arriving from abroad.”

Our analysis in this protest is the same as that contained in HRLs 561472 and 562339. In order to qualify for duty exemption under subheading 9817.00.98, HTSUS, the theatrical apparel must meet the criteria set out in the language of the subheading. With regard to the first requirement of subheading 9817.00.98, we find, based on the information provided, that the theatrical apparel shipped by the Contemporary Dance Trust Co. in London to the New World School of the Arts in Miami would meet the criteria of “theatrical apparel.” The second requirement, however, is not met because it is not apparent that the costumes were brought into the United States by the proprietors or managers of the Miami theatrical production arriving from abroad. Here, unlike in HRL 561472 where the Canadian theatrical company brought into the United States its own theatrical scenery, properties and apparel, the costumes for the Miami school performance did not accompany the proprietor or manager of the Miami school production.

Lastly, we note that the duty-free treatment of subheading 9817.00.98, HTSUS, is applicable only to merchandise imported for temporary use. Although the theatrical apparel was only borrowed and the New World School of the Arts intends to return the apparel back to the Contemporary Dance Trust Co. in London, to be classified within subheading 9817.00.98, HTSUS, the theatrical apparel must still satisfy all the requirements of the subheading.

HOLDING:

The imported theatrical apparel does not meet the requirements of subheading 9817.00.98, HTSUS. According, the protest should be DENIED.

In accordance with the Protest/Petition Processing Handbook (CIS HB, January 2002, pp. 18 and 21), you are to mail this decision, together with the CBP Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with the decision must be accomplished prior to mailing of the decision. Sixty days from the date of the decision, the Office of Regulations and Rulings will make the decision available to CBP personnel, and to the public on the CBP Home Page on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.

Sincerely,

Myles B. Harmon, Director

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