The tariff classification of children’s costumes from China.

N057802 May 11, 2009 CLA-2-61:OT:RR:NC:3:353 CATEGORY: Classification TARIFF NO.: 6104.43.2020, 6211.43.0091, 9505.90.6000, Mr. Gary Felsenthal Team Creations (HK) LTD 333 North State Road #46 Briarcliff Manor, NY 10510 RE: The tariff classification of children’s costumes from China. Dear Mr. Felsenthal: In your letter dated April 2, 2009, received in this office on April 17, 2009, you requested a tariff classification ruling. The samples which you submitted are being returned as requested. The submitted sample is an Item # 504225 Assortment consisting of LED Lite-Up Angel, Witch, and Pirate costumes; the costumes in the assortment are sold individually at retail and will be imported ready for retail sale. Each costume has a dress and an apron-like half skirt. The dress is worn over the apron-like half skirt, which contains battery operated LEDs. The Style #504225 LED Lite-Up Angel dress is constructed of knit polyester fabric and features puff sleeves, faux corset, a loose overlock stitched neck, sturdy waist and seams, hemmed edges except at the bottom of the skirt, and a sewn-on peplum embellishment. The overall amount of finishing is such that the article is neither flimsy in nature or construction, nor lacking in durability. In addition to the dress and apron-like half skirt, the LED Lite-Up Angel costume contains textile wings that are attached to the dress by means of hook and loop fasteners. The Style #504225 LED Lite-Up Witch dress is constructed of knit polyester fabric and features a stylized sleeve, faux lace-up front, double layer net fabric peplum over the skirt, sturdy neck, waist and interior seams, and a raw bottom skirt edge. The overall amount of finishing is such that the article is neither flimsy in nature or construction, nor lacking in durability. In addition to the dress and apron-like half skirt, the LED Lite-Up Witch costume contains a textile witch’s hat. The Style #504225 LED Lite-Up Pirate dress is constructed of knit polyester fabric and features a sturdy neck and waist, and sewn-on embellishments; however, it features little or no styling, loose single straight stitches at the seams, thin elastic at the arms, and raw edges at the collar, arms and skirt bottom. The overall amount of finishing is such that the article is flimsy in nature or construction, and lacking in durability. In addition to the dress and apron-like half skirt, the LED Lite-Up Pirate costume contains a knit polyester fabric headband. The Style #504225 LED Lite-Up Angel, Witch and Pirate apron-like half skirt is constructed of woven polyester fabric with a knit net overlay and features a two-layer skirt with padding, battery operated LEDs embedded in the skirt, a capped waist, sturdy seams, a string tie, and sturdy edges. The overall amount of finishing is such that the article is neither flimsy in nature or construction, nor lacking in durability. You state that you believe the costumes are properly classified under heading 9505 as a toy. Costumes are considered “fancy dress.” Chapter 95 Note 1(e) excludes “Sports clothing or fancy dress of textiles, of chapter 61 or 62.” The Court of Appeals ruled on the classification of costumes in its decision in Rubie’s Costume Co. v. United States, slip op 02-1373 (Fed. Cir. Aug. 1, 2003). The decision stated that all flimsy, non-durable textile costumes that are not ordinary articles of apparel are classified under 9505.90.6000 (flimsy); all textile costumes that do not meet flimsy, non-durable standards (well made), or are ordinary articles of apparel are classified in chapters 61 or 62. The LED Lite-Up Angel dress, the LED Lite-Up Witch dress, and the apron-like half skirt for the LED Lite-Up Pirate, Witch, and Angel are well made; the Lite-Up Pirate dress is flimsy. The Style #504225 LED Lite-Up Angel and Witch costumes consist of two garments; the dress is classified in heading 6104 and the apron-like half skirt in heading 6211. Note 14 of Section XI, of the HTSUS, requires that 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 14, the articles that may be packaged with the garments must also be classified separately. The applicable subheading for the Style #504225 LED Lite-Up Angel and Witch dresses will be 6104.43.2020, Harmonized Tariff Schedule of the United States (HTSUS), which provides for "Women's or girls' suits, ensembles… dresses, skirts, divided skirts, trousers…knitted or crocheted: Dresses: Of synthetic fibers, Other, Girl’s." The rate of duty will be 16 percent ad valorem. The applicable subheading for the Style #504225 LED Lite-Up Angel and Witch apron-like half skirts will be 6211.43.0091, Harmonized Tariff Schedule of the United States (HTSUS), which provides for "…Other garments, women's or girls': Of man-made fibers, Other." The rate of duty will be 16 percent ad valorem. The applicable subheading for the Style #504225 LED Lite-Up Angel wings will be 9505.90.6000, Harmonized Tariff Schedule of the United States (HTSUS), which provides for "Festive, carnival or other entertainment articles, including magic tricks and practical jokes articles: parts and accessories thereof: Other: Other." The duty rate will be Free. We are returning your request for a ruling on the Style #504225 LED Lite-Up Witch hat, and any related samples, exhibits, etc. The classification of the merchandise which is the subject of your request involves a consideration of whether the merchandise may be classifiable in Chapter 95 as “festive.” Section 177.7 of the Customs Regulations (19 C.F.R. §177.7) provides that rulings will not be issued in certain circumstances. Specifically, § 177.7(b) reads, in pertinent part: No ruling letter will be issued with respect to any issue which is pending before the United States Court of International Trade, the United States Court of Appeals for the Federal Circuit or any court of appeal therefrom. As such, CBP will not issue a classification ruling with regard to the Style #504225 LED Lite-Up Witch hat at this time. The classification determination may be impacted by court cases currently pending in the Court of International Trade. See Michael Simons Designs, Inc. v. United States, Ct. No. 04-00537; Berwick Industries, Inc. v. United States, Ct. Nos. 98-12-03189, 96-01-00263, 99-01-000436, 99-03-00121, 99-03-00158, 99-06-00356, 98-09-02897, 97-05-00789, 97-06-00983, 97-08-01400, 96-12-0738, 96-05-01359, and 96-04-01197; Waterford Wedgwood USA, Inc. v. United States, Ct. Nos. 00-05-00215, 99-03-00133 and 99-11-00721; Cuthbertson Imports Inc. v. United States, Ct. No. 03-00846; and Wilton Industries, Inc. v. United States, Ct. Nos. 00-11-00528, 00-01-00218, 00-03-00014, 00-03-00015, 00-04-00193, 00-04-00194 and 00-04-00250. If you wish, you may resubmit your request for a prospective ruling after the appropriate court cases have been resolved. The Style #504225 LED Lite-Up Pirate costume consists of three items; the flimsy dress is classified in heading 9505, the apron-like half skirt in heading 6211, and the headband in heading 6117. General Rule of Interpretation (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 imparts the essential character of the set. The applicable subheading for the Style #504225 LED Lite-Up Pirate costume set will be 9505.90.6000, Harmonized Tariff Schedule of the United States (HTSUS), which provides for "Festive, carnival or other entertainment articles, including magic tricks and practical jokes articles: parts and accessories thereof: Other: Other." The duty rate will be Free. Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on World Wide Web at http://www.usitc.gov/tata/hts/. 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 National Commodity Specialist Division