Classification of Textile Costumes

HQ H040032 March 10, 2009 CLA-2 OT:RR:CTF:TCM H040032 ASM CATEGORY: Classification TARIFF NO.: 6204.43.4040, 6204.53.3020 Tracy Beck Key Account Sales Associate Creative Designs International, Ltd. 2540 Metropolitan Drive Trevose, PA 19053-6738 RE: Classification of Textile Costumes Dear Ms. Beck: This is in response to your request dated August 4, 2008, for a binding ruling made on behalf of your company, Creative Designs International, Ltd. (a subsidiary of Jakks Pacific, Inc.), regarding the classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) of five textile costumes. Your request was forwarded by the National Commodity Specialist Division in New York to this office for direct reply. We received your binding ruling request on September 30, 2008. Samples have been received by Customs and Border Protection (CBP) and have been carefully examined in connection with this ruling letter. FACTS: Item 89630-CDI, identified by you as the “Fancy Nancy Poodle Dress”, is a dress which features a voluminous gathered circular skirt (approximately 10 ½ inches long) constructed of three separate layers. The bottom edge of each skirt layer has been finished with overlock stitching using thread shades that precisely match the skirt fabric colors. The middle layer is comprised of a netting fabric which adds fullness to the skirt. The front of the skirt has been embellished with a stylized poodle appliqué approximately 6 ½ inches high x 5 inches wide. The poodle design appliqué consists of white napped fabric and heavy machine embroidery in a white, pink and red motif. A pink tubular cord, approximately 36 inches in length, has been sewn to the poodle appliqué to serve as a collar and leash and has been stitched to the skirt so that the leash extends in a curved, decorative fashion along the front left side of the skirt ending at the waistband. The waistband has been further enhanced with a 1 ½ inch wide pink sash that has been securely sewn into the seam of the waistband along with the gathered skirt layers. The sash extends to the back so that it can be tied in a large bow and all raw edges of the sash have been finished in overlock stitching using thread that precisely matches the color of the sash fabric, which renders the stitching less visible. The “Fancy Nancy Poodle Dress” (Item 89630-CDI) bodice features a gently scooped neckline finished with overlock stitching and a pink metallic braiding embellishment along the front of the neckline. The front of the bodice features a plastic and feathered “cameo” style embellishment that has been securely sewn at the neckline. The front bodice panel and gathered puff sleeves are constructed of white knit fabric printed with black stylized spots while the back of the bodice is constructed of white knit fabric. The short puff sleeves have been gathered with elastic at the edge. The elastic is approximately ¼ inch wide and has been securely sewn to form a puffed and gathered effect on the sleeve. The lower edge of the puff sleeves have been secured with overlock stitching and embellished with 1 ½ inch wide ornate white lace along the edge. The back has a slash opening that descends to the waistline. Matching white overlock stitching finishes the edging of the back opening and two hook and loop fasteners have been sewn to the back to serve as closures. All interior seam edges of the skirt have been finished with durable overlock stitching. Item 89633-CDI, identified by you as the “Fancy Nancy Frilly Tutu”, consists of a ballerina style “tutu” comprised of a very voluminous gathered circular skirt made from two layers of netting. The skirt extends fully 28 inches in width and approximately 12 inches in length. The lower layer of netting has been finished with overlock stitching using thread in a shade that precisely matches the fabric. Although the top layer of the skirt has no finished edge, it is constructed of netting which resists fraying. This incorporates a design element wherein the raw edge lends a lightness and ethereal quality to the skirt. The skirt layers have been securely gathered and sewn to a ¼ inch wide elastic band. A 1 ½ inch wide pink satin band has been sewn to the waistband and the edges finished with overlock stitching that precisely matches the fabric color. The front of the waistband has been embellished with multiple ribbon bows in various fabrics and contrasting pink, shimmer, violet, and dotted motifs. These ribbons and two fabric daisy flowers appear to have been securely hand-sewn to the waistband. Item 89634-CDI, identified by you as the “Fancy Nancy Frilly Tutu”, also consists of a ballerina style “tutu” comprised of a very voluminous gathered circular skirt made from two layers of netting. The skirt extends fully 28 inches in width and 12 inches in length. The lower layer of netting has been finished with overlock stitching using thread in a shade that precisely matches the fabric. Although the top layer of the skirt has no finished edge, it is constructed of netting which resists fraying. This incorporates a design element wherein the raw edge lends a lightness and ethereal quality to the skirt. The skirt layers have been securely gathered and sewn to a ¼ inch wide elastic band. A 1 ½ inch wide pink satin band has been sewn to the waistband and the edges finished with overlock stitching that precisely matches the fabric color. An ornate braiding enhanced with decorative metallic looped yarn completely encircles the waist and has been sewn at the waistline to the top layer of netting. The front of the skirt has been embellished with seven decorative pink ribbon motifs that appear to have been hand-sewn into flower shapes with decorative beading sewn to the centers and each flower securely sewn to the top layer of netting. Item 89628-CDI, identified by you as the “Barbie Princess Dress”, consists of a dress that features a multiple panel skirt. The front waist panel is enhanced with a highly stylized violet satin fabric panel having a flower and branch glimmer motif. The back of this waist panel is constructed of unadorned satin violet fabric with no glimmer motif. However, the entire waist panel has been “flounced” and gathered in such a way that it encircles the entire waist and balloons out from the waistline. The lower edge of the satin fabric waist panel has been finished in a matching thread overlock stitch and ¼ inch elastic sewn to the edge, which causes the satin panel to gather and fold under itself. Thus, the effect is of a flounced or balloon style gathered panel. The top portion of the panel is approximately 5 inches long and has no visible raw edge or hem because the elastic sewn to the bottom edge causes approximately 3 inches of the panel to fold smoothly under the visible portion of the satin panel. This balloon flounce also has an enhanced fullness due to an interior layer of netting that has been sewn to the waistband and finished in overlock stitching with matching thread and hidden from view as it is folded within the satin waist flounce. The back half of the waistline has been fitted with a ¼ inch elastic securely sewn to the interior seam at the waist. The skirt also consists of a foundation panel, which is comprised of two horizontal panels sewn together and measuring a total of approximately 15 inches in length. The lower panel has a finished overlock stitch at the hem in a matching thread and has been embellished with two top layers of gathered netting in white and pale blue. The top layer of netting is distinctive in that it is a heavily adorned iridescent glimmer white fabric netting. The raw edges of both panels of netting lend a light and ethereal quality to the bottom of the skirt. The “Barbie Princess Dress” (Item 89628-CDI) also features two horizontal front bodice panels that are seamed just under the bust line. The lower panel is approximately 3 ½ inches wide and is constructed of the same embellished violet satin fabric that is used in the balloon flounce at the waist. A second upper bodice panel in contrasting violet satin fabric forms a simple neckline with strapless style shaping at the top of the dress. However, the same white netting with iridescent glimmer that is used at the bottom of the skirt is also used to form two shoulder strap panels in the upper half of the bodice. Each netting panel measures approximately 3 inches wide x 8 inches long and is slightly gathered and pleated. These panels are then incorporated into the seam that appears at the bodice (i.e., this seam connects the lower and upper bodice panels) thus forming both an embellished upper bodice and sheer embellished netting shoulder straps that are approximately 3 inches wide. These net shoulder panels are embellished with hand sewn ribbon rosette garlands in contrasting shades of fuchsia, violet, and green, which are sewn (by hand) to each of the front netting shoulder panels. The upper half of the bodice also features an inset triangular shaped satin panel of the same embellished fabric as the lower bodice panel. The front bodice panel seam, which connects the lower and upper bodice panels, has been embellished with an iridescent sequin strand sewn directly over the seam. A plastic heart shaped cameo style brooch is securely sewn to the front panel at the center of the neckline. The back panel of the bodice is constructed of knit fabric, is sleeveless, has a slightly rounded neckline, a slash back opening, and two hook and loop fasteners. All edges have been finished with overlock stitching in a matching thread so that it is less visible. All interior seam edges have been finished with durable overlock stitching. Item 62626-CDI, identified by you as the “Disney Princess Snow White Dress”, consists of an extremely full and voluminous five layer skirt, approximately 18 inches long, that features a top front panel of sheer yellow iridescent fabric with an ornate whimsical motif of gold glitter birds, bows, and swirling star patterns. The back half of the top skirt panel is constructed of sheer yellow iridescent fabric. Both the front and back top skirt panels have edges finished in overlock stitching with yellow thread that matches the fabric. The second layer descends the full 18 inch length of skirt, encircling both the front and back of the skirt with a coarse, stiff white netting that provides fullness to the top layer. The next two panels are approximately 5 inches long, have been gathered, and are constructed of the same stiff white netting but these panels are only attached at the front of the skirt. However, these two 5 inch panels provide additional fullness at the waist causing the top of the skirt to extend approximately 2 feet in width. None of the skirt’s coarse netting panels have finished edges, however the fabric resists fraying. Finally, the skirt’s foundation panel is a voluminous lightweight woven yellow fabric, approximately 18 inches long, that has been finished with overlock stitching in a matching yellow thread. Gold braiding enhances the top of the waistline and has been securely sewn so that it completely encircles the waist. At the inside seam, the entire waistline has been finished with a soft white napped fabric capping that reinforces and completely encases the interior seam at the waistline providing comfort to the wearer. A ¼ inch wide elastic has been sewn to the interior of the back skirt panel of the waistline. All interior edges of the underskirt have been finished in overlock stitching. The “Disney Princess Snow White Dress” (Item 62626-CDI) also features an ornate bodice formed in three vertical panels. Both side panels are constructed of a dark blue napped fabric while the center panel consists of a red satin fabric that has been overlaid with a sheer red iridescent fabric embellished with a red embroidered floral motif and raised gold glitter dots. The center bodice panel is further enhanced with the sewn application of ornate gold sequins and braiding along the top neckline. This same embellishment has also been sewn to the seams on either side of the center panel extending all the way up to the shoulder seams. The square neckline is designed with a “stand-up” detachable white ornamental collar that is adhered by hook and loop fasteners to the inside of the neckline. A decorative plastic broach with Snow White’s image has been securely sewn at the top, center of the neckline. The short puff sleeves are approximately 5 ½ inches wide and have been constructed of red satin fabric, gathered by an ¼ inch elastic sewn to the inside of the fabric, and finished on the edge with an overlock stitch in matching red thread. In addition, each puff sleeve has been further embellished by the application of three blue satin fabric strips (1 inch wide) that descend from the armhole seam down the entire length of the puff sleeve. These ornamental blue strips have been securely attached to the puff sleeve by overlock stitching on each side of the strip so that there are no raw edges. The back bodice panel is constructed of blue knit fabric, has a slash back opening that descends to the waist, two hook and loop closures, and edges that have been finished with overlock stitching in matching blue thread. On behalf of your company, you have asserted that all five of the subject textile costumes should be classified in heading 9505, HTSUSA, which provides for “Festive, carnival, or other entertainment articles, including magic tricks and practical joke articles; parts and accessories thereof". Referencing each costume, you separately enumerate those “finishing touches” that you deem to be “flimsy” and those that are “well-made”. ISSUE: Whether the merchandise is classified in heading 9505, HTSUSA, as festive, carnival, or other entertainment articles, or in heading 6204, HTSUSA, as girls’ dresses or skirts? 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 heading 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 Harmonized Tariff Schedule and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989). 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, HTSUSA. The ENs to 9505, HTSUSA, state, among other things, 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]     * * * Heading 6204, HTSUSA, provides for “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)”. The term “fancy dress” is not defined in the HTSUSA. However in Rubie’s Costume Company v. United States, 337 F.3d 1350 (Fed Cir. 2003), hereinafter Rubie’s, the Court of Appeals for the Federal Circuit (CAFC), stated that “fancy dress” encompasses textile costumes that are classifiable as “wearing apparel” under Chapter 61 or 62. Id at 1357. The court found that CBP’s decision giving rise to the litigation, Headquarters Ruling Letter (HQ) 961447, dated July 22, 1998, 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. Id at 1358. 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 61/62, HTSUSA. Id. Specifically, the court cited approvingly to CBP’s focus on the texture and quality of the materials. Id. The aforementioned features and numerous other characteristics used to distinguish between textile costumes classifiable as “Festive articles” of Chapter 95, HTSUSA, and “fancy dress” of Chapters 61 or 62, HTSUSA, has also been set forth in great detail in the CBP Informed Compliance Publication (ICP), What Every Member of the Trade Community Should Know About: Textile Costumes under the HTSUS, August 2006 (“Textile Costumes under the HTSUS”). As noted in this publication, we generally consider four areas in making classification determinations for textile costumes, i.e., “Styling”, “Construction”, “Finishing Touches”, and “Embellishments”. With regard to “Styling”, the examples provided in the ICP note that a “well-made” article of Chapter 61 or 62, HTSUSA, would have two layers of fabric, pleats, and facing fabrics (two or more layers of fabric/linings). The subject costumes have abundant “Styling” features with voluminous and multiple skirt panels, sewn appliqué work and embroidery, shaped inset panels on the bodice, ornate embellishments that in some instances have been hand-formed, embellishments that are securely sewn to the fabric, strong overlock edges to prevent fraying, embellished fabric with ornate designs and glitter effects, and unique flounced/embellished waist treatments. The ICP also provides examples of well-made “Construction” elements, which include an assessment of the neckline and seams. Since the over-lock stitching used on each of the raw edges of these costumes, including the necklines of all three dresses, serves to make the costume more durable, the stitching is deemed to be representative of well-made and durable construction. In this instance, we note that the quality of the stitching and seam construction on all five costumes is not loose or gaping. As a result, the seams are of sufficient strength and quality to allow for repetitive use of the article. In addition the ICP notes that costumes that are well-made have embroidery, trimmings, and appliqués that have been sewn to the fabric. Each of the five costumes which are the subject of this ruling feature ornate embellishments which have been securely sewn to the costume. Furthermore, the ICP notes that well-made articles may have decorative overlock stitching visible at the neckline or wrists which provides ornamentation and increased durability at edges which receive significant wear. Such is the case in the subject costumes which feature durable overlock stitching in thread shades that exactly match the fabric color. Finally, the ICP notes that it is important to consider the garment as a whole. This is accomplished by considering whether or not it is reasonable to conclude that the article is a normal article of wearing apparel. Normal articles of apparel are usually designed for multiple wear and cleaning. Thus, it is necessary to assess the type of fabric used and the appropriateness of finishing elements for that fabric. With respect to longevity of the article, it is important to keep in mind that raw edges are not appropriate for fabrics that may fray easily. However, certain fabrics, such as netting, tightly knit/woven fabrics, or treated fabrics, may be very durable even with a raw edge. On occasion, a raw edge is intended to enhance the styling features on a costume. If the costume is comparable to a normal article of wearing apparel, it is classified in Chapter 61 or 62, HTSUSA. It is clear that each of the five costumes now in question has been designed and constructed as wearing apparel for repetitive use given the elaborate styling features and durable construction. Moreover, with respect to the subject tutus, we note that CBP has consistently found ballerina tutus to be articles of fancy dress and denied classification under Ch. 95, HTSUSA. See HQ 962232, dated November 9, 2000, and HQ 964623, dated March 1, 2001, both of which classified ballerina tutus as wearing apparel of Ch. 61 or Ch. 62, HTSUSA. See also, HQ 960805, dated August 22, 1997; HQ 958061, dated October 3, 1995; New York Ruling (NY) C87719, dated May 22, 1998; NY B89328, dated October 1, 1997; NY B86761, dated August 20, 1997; NY B83427, dated June 17, 1997. It is the conclusion of CBP, based on the above discussion, that all five of the subject textile costumes are provided for as “well-made” articles of wearing apparel in heading 6204, HTSUSA. HOLDING: Pursuant to GRI 1, the subject merchandise, which you have identified as the “Fancy Nancy Poodle Dress” (Item 89630-CDI), “Barbie Princess Dress” (Item 89628-CDI), and the “Disney Princess Snow White Dress” (Item 62626-CDI), are correctly classified in 6204.43.4040, HTSUS, which provides for “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): Dresses: Of synthetic fiber: Other: Other...Other: Girls.” The rate of duty is 16 ad valorem and the applicable textile category code is 636. Pursuant to GRI 1, the two articles identified as the “Fancy Nancy Frilly Tutu” (Items 89633-CDI and 89634-CDI), are correctly classified in subheading 6204.53.3020, HTSUSA, which provides for, "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): Skirts and divided skirts: Of synthetic fibers: Other: Other, Girls’." The general column one duty rate is 16 percent ad valorem. The textile category is 642. Duty rates are 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. With the exception of certain products of China, quota/visa requirements are no longer applicable for merchandise which is the product of World Trade Organization (WTO) member countries. The textile category number above applies to merchandise produced in non-WTO member-countries. Quota and visa requirements are the result of international agreements that are subject to frequent renegotiations and changes. To obtain the most current information on quota and visa requirements applicable to this merchandise, we suggest you check, close to the time of shipment, the "Textile Status Report for Absolute Quotas" which is available on our web site at www.cbp.gov. For current information regarding possible textile safeguard actions on goods from China and related issues, we refer you to the web site of the Office of Textiles and Apparel of the Department of Commerce at otexa.ita.doc.gov. 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 CBP office prior to importation of this merchandise to determine the current status of any import restraints or requirements. Sincerely, Gail A. Hamill, Chief Tariff Classification and Marking Branch