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 > 2006 HQ Rulings > HQ 968346 - HQ W968318 > HQ 968346

Previous Ruling Next Ruling
HQ 968346




July 27, 2006

CLA-2 RR:CTF:TCM 968346 ASM

CATEGORY: CLASSIFICATION

TARIFF NO.: 9505.90.6000

Ms. Sara May
Dan Dee International Ltd.
7282 123rd Circle North
Largo, FL 33773

RE: Classification of Disposable Costumes packaged for retail sale with detachable headpieces and bags

Dear Ms. May:

This is in response to your request regarding the classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) of certain disposable costumes packaged with headpieces and bags. A single sample, identified as the “Devil Disposable Costume”, was submitted to Customs and Border Protection (CBP) for examination.

FACTS:

The subject item is described as a disposable Halloween costume for infants made of non-woven fabric consisting of 60 percent polyester and 25 percent cotton (15 percent of the component material is unspecified). The subject merchandise is retail packaged for sale and importation into the United States and consists of a costume, headpiece, and “Trick or Treat” bag packaged together. It is further noted that these disposable Halloween costumes come in assorted styles, i.e., a scary creature, a ghost, and a devil. Neither the hats nor the bags are permanently attached to the costumes. All three costumes have symbols intended to represent Halloween with “Boo”, “Trick or Treat”, bats, and flames with pitch fork. The costumes are intended for one time use. The costume submitted for our review is a jumpsuit that has been constructed with loose overlock stitching and straight stitching of a loose gauge. A decorative iron on appliqué design has been adhered to the front of the jumpsuit. Thin elastic, less than ¼ inch in width, has been sewn directly to the costume at the ankles, neck, and cuffs. Each leg panel has a split opening at the inside seam that allows the leg panels to be completely opened for diaper changes. There are six hook and loop fasteners attached to each leg panel for closure. There is a raw edged 3 inch slash opening at the back which closes with a hook and loop fastener. The neckline also has a raw edge. Hook and loop fasteners have been sewn to the front and back neckline to form a secure attachment with the headpiece. With respect to the devil costume, a stylized tail has been stuffed with fiber filling and sewn to the back center seam of the costume.

The headpiece is constructed in five panels, with elastic, gathers, and darts to create a bonnet style headpiece. A string tie of matching fabric has been sewn to the lower edge to secure the headpiece. All other edges are unfinished/raw. With respect to the devil costume, two devil horns have been sewn to the top of the headpiece and incorporated into the seams which join the panels together at the crown. Hook and loop fasteners have been sewn to the lower edge so that the headpiece can fasten to the jumpsuit at the neckline.

The bag is a small rectangular tote that is approximately 5 inches wide x 7 inches long. The bag has two 3 ½ inch loop handles sewn to the inside edge of the bag, no lining, and an iron on appliqué with a stylized notation of the words “Trick or Treat”.

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 headings and legal notes do not otherwise require, the remaining GRI may then be applied. The Harmonized Commodity Description and Coding System Explanatory Notes (“ENs”) constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUSA and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

The subject merchandise contains three articles packaged together, which cannot be classified pursuant to a GRI 1 analysis because the articles are prima facie, classifiable in three different headings. If imported separately, the textile costume may be classifiable in heading 9505, HTSUSA, which provides, in part, for “Festive, carnival or other entertainment articles”, the hat would be classifiable in heading 6505, HTSUSA, which provides, in part, for “Hats or other headgear”, and the trick or treat bag may be classifiable in heading 4202, HTSUSA, which provides, in part, for “travel bags”.

When goods are, prima facie, classifiable in two or more headings, they must be classified in accordance with GRI 3, which provides in relevant part as follows:

(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.

(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.

GRI 3 establishes a hierarchy of methods for classifying goods that fall under two or more headings. GRI 3(a) states that the heading providing the most specific description is to be preferred to a heading, which provides a more general description. However, GRI 3(a) indicates that when two or more headings each refer to part only of the materials or substances in a composite good 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 than the other. In this case, the headings 9505, 6505, and 4202, HTSUSA, each refer to only part of the items in the set. Thus, pursuant to GRI 3(a), we must consider the headings equally specific in relation to the goods. Accordingly, the goods are classifiable pursuant to GRI 3(b).

In classifying the articles pursuant to a GRI 3(b) analysis, the goods are classified as if they consisted of the component that gives them their essential character and a determination must be made as to whether or not these are “goods put up in sets for retail sale”. In relevant part, the ENs to GRI 3(b) state:

(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.

For the purposes of this Rule, the term “goods put up in sets for retail sale” shall be taken to mean goods which:
consist of at least two different articles which are, prima facie, classifiable in different headings. Therefore, for example, six fondue forks cannot be regarded as a set within the meaning of this Rule; consist of products or articles put up together to meet a particular need or carry out a specific activity; and are put up in a manner suitable for sale directly to users without repacking (e.g., in boxes or cases or on boards).

In accordance with GRI 3(b), we find that the subject component articles are properly classified as “sets” because they consist of goods put up in a set for retail sale. In this instance, the bag is designed to coordinate with the Halloween costume in that it is constructed of the same fabric, bears a stylized “Trick or Treat” iron on appliqué, and is color coordinated to match the devil horns sewn to the headpiece. In addition, the bag is quite small (5 inches wide x 7 inches long) so that an older infant or toddler can easily grasp the handles and carry the bag for “Trick or Treating”. Thus, the jumpsuit/costume, coordinating hat and bag, are designed to carry out a specific activity, i.e., “Trick or Treating” on Halloween. Furthermore, the components in this set are, prima facie, classifiable in different headings and have been put up in retail packaging suitable for sale directly to users without repacking.

There have been several court decisions on "essential character" for purposes of GRI 3(b). These cases have looked to the role of the constituent materials or components in relation to the use of the goods to determine essential character. See, Better Home Plastics Corp. v. United States, 916 F. Supp. 1265 (CIT 1996), affirmed, 119 F. 3d 969 (Fed. Cir. 1997); Mita Copystar America, Inc. v. United States, 966 F. Supp. 1245 (CIT 1997), rehearing denied, 994 F. Supp. 393 (CIT 1998), and Vista International Packaging Co., v. United States, 19 CIT 868, 890 F. Supp. 1095 (1995). See also, Pillowtex Corp. v. United States, 983 F. Supp. 188 (CIT 1997), affirmed, 171 F. 3d 1370 (Fed. Cir. 1999).

The essential character of the subject sets can be determined by comparing each component as it relates to the use of the product. In this instance, it is the textile costume that imparts the essential character to the set. The jumpsuit is the largest component, uses the most material, and provides the wearer with an immediately recognizable character. Clearly, the jumpsuit was more costly to manufacture than the small tote bag and hat. In most instances, CBP has held that the costume and not the headgear impart the essential character to a GRI 3(b) set. See Headquarters Ruling Letter (HQ) 959545, dated June 2, 1997, in which it was noted that by application of GRI 3(b), the “Cute and Cuddly Clown” hat, which was retail packaged with the costume was also classifiable under Chapter 62, HTSUSA, because the essential character of the set was determined by the garment.

In classifying the jumpsuit, we note that Heading 9505, HTSUSA, includes articles, which are "Festive, carnival, or other entertainment articles, including magic tricks and practical joke articles; parts and accessories thereof". Note 1(e), Chapter 95, HTSUSA, excludes articles of "fancy dress, of textiles, of chapter 61 or 62" from classification in Chapter 95. In relevant part, the ENs to 9505 state that the heading covers:

(A)     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. [emphasis supplied] The case of Rubie’s Costume Company v. United States, 337 F.3d 1350 (Fed Cir. 2003), presented the question of whether CBP’s decision in HQ 961447, dated July 22, 1998, merited deference when CBP determined that textile costumes of a flimsy nature and construction, lacking in durability, and generally recognized as not being normal articles of apparel were classifiable as duty free “festive articles” under subheading 9505.90.6090 (now 9505.90.6000), HTSUSA. The court found that HQ 961447 was entitled to deference and upheld the reasoning set forth in that ruling, which classified textile costumes of a flimsy nature and construction, lacking in durability, and generally recognized as not being normal articles of apparel, as “festive articles” in heading 9505, HTSUSA. Of particular relevance to the merchandise now in question is the fact that the court specifically noted that HQ 961447 had correctly compared functional and structural deficiencies of “festive article” costumes with the standard features found in “wearing apparel” in order to determine whether articles are properly classified in Chapter 95 or Chapters 61 and 62, HTSUSA.

HQ 961447 affirmed CBP’s decision in HQ 959545, dated June 2, 1997, which responded to a domestic interested party petition filed pursuant to Section 516 of the Tariff Act of 1930, as amended (19 U.S.C. 1516) and Title 19 Code of Federal Regulations Section 175.1 (19 C.F.R. 175.1). In HQ 959545, CBP set forth the criteria used to determine the textile costumes that were classifiable as “festive articles” in subheading 9505.90.6090, HTSUSA, and held that the “Witch of the Webs” (No. 11062), “Abdul Sheik of Arabia (No. 15020), “Pirate Boy” (No. 12013), and “Witch (No. 11005), were considered flimsy, lacking in durability, and not normal articles of apparel, and were properly classified as “Festive, carnival or other entertainment articles . . .” in heading 9505, HTSUSA. These textile costumes shared the following characteristics: There were no significant styling features and each costume had raw edges on fabrics that could “run” or fray. In assessing the subject costumes, we note that there is only one significant styling feature, i.e., a stuffed tail sewn to the back seam of the costume. All other features on the jumpsuit are flimsy and lacking in durability, sharing similarities to the flimsy costumes in HQ 959545. The neckline and all edges on the jumpsuit have been left raw and unfinished, the sewing is of poor quality with loose stitching, and the jumpsuit has a raw edged slash opening in the back with only one hook and loop closure.

Additional characteristics used to distinguish between textile costumes classifiable as “Festive articles” of Chapter 95, HTSUSA, and fancy dress of Chapters 61 or 62, HTSUSA, have been set forth in CBP’s Informed Compliance Publication (ICP), dated June 2006, entitled “What Every Member of the Trade Community Should Know About: Textile Costumes under the HTSUS”. As noted in this ICP, we generally consider four areas in making classification determinations for textile costumes, i.e., “Styling”, “Construction”, “Finishing Touches”, and “Embellishments”. As noted in the ICP, the criteria used by CBP in determining what is meant by the terms “flimsy, non-durable” or “well-made” in order to classify textile costumes as festive articles in subheading 9505.90.6000, HTSUSA, or as fancy dress in Chapters 61 or 62, HTSUSA, has been set forth in the following rulings: HQ 957973, August 14, 1995; HQ 958049, August 21, 1995; HQ 958061, dated October 3, 1995; HQ 957948, May 7, 1996; HQ 957952, May 7, 1996; HQ 959545, June 2, 1997; HQ 959064, June 19, 1997; HQ 960805, August 22, 1997; HQ 960107, October 10, 1997; HQ 961447, July 22, 1998; HQ 962081, November 25, 1998; HQ 962184, November 25, 1998; and HQ 962441, March 26, 1999.

With regard to “Styling”, the examples provided in the ICP note that a “flimsy ” costume of Chapter 95, HTSUSA, would have little or no styling. The subject jumpsuit has only one “Styling” feature with a fiber filled tail sewn to the back seam. The ICP also provides examples of flimsy “Construction” elements, which include an assessment of the neckline and seams, e.g., raw edges and loose stitching at the seams. The jumpsuit has a raw edged neckline with no facing or protective edging and the garment has been constructed with loose stitching. The ICP notes that flimsy “Finishing Touches” include thin elastics (¼ inch in width) sewn directly to the fabric, raw edges, and a hook and loop closure. All of the exposed edges have been left raw, the jumpsuit has thin elastic (less than ¼ inch in width) that is sewn directly to the fabric at the wrists and ankles, and a slash opening in the back which has hook and loop tab closures. The ICP notes that embellishments are usually minor components of a costume, but are considered flimsy and non-durable if glued or otherwise insufficiently attached to the costume. There is only a single embellishment on the front of the costume, which is an iron on appliqué design.

In view of the foregoing, we find that the subject merchandise is properly classified as retail sets pursuant to a GRI 3(b) analysis and that the jumpsuit imparts the essential character to the set. As such, we find the articles are properly classified as “flimsy” costumes of heading 9505, HTSUSA.

HOLDING:

The subject disposable costume sets, made of 60 percent polyester and 25 percent cotton non-woven fabric, and packaged for retail sale with a jumpsuit, headpiece, and bag, are properly classified as GRI 3(b) “sets”, with the jumpsuit providing the essential character, in subheading 9505.90.6000, HTSUSA, which provides for “Festive, carnival or other entertainment articles, including magic tricks and practical joke articles; parts and accessories thereof: Other: Other”. This provision is “Free” at the general column one rate of duty.

Please note that the duty rates set forth in this ruling letter are merely provided for your convenience and are subject to change. The text of the most recent HTSUSA and the accompanying duty rates are provided on the World Wide Web at www.usitc.gov.

Sincerely,

Gail A. Hamill, Chief

Previous Ruling Next Ruling

See also: