[Federal Register Volume 62, Number 245 (Monday, December 22, 1997)]
[Notices]
[Pages 66891-66893]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-33291]
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DEPARTMENT OF THE TREASURY
Customs Service
Receipt of Domestic Interested Party Petition Concerning Tariff
Classification of Textile Costumes
AGENCY: Customs Service, Treasury.
ACTION: Notice of receipt of domestic interested party petition;
solicitation of comments.
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SUMMARY: Customs has received a petition submitted on behalf of a
domestic interested party requesting the reclassification of certain
imported textile costumes. The petitioner contends that Customs is
incorrect in classifying textile costumes which are flimsy, not
durable, and not normal articles of wearing apparel, under subheading
9505.90.6090, Harmonized Tariff Schedule of the United States (HTSUS),
as ``Festive, carnival or other entertainment articles, including magic
tricks and practical joke articles; parts and accessories thereof:
Other: Other: Other.'' The provision is duty free under the general
column one rate and costumes classifiable under this provision are not
subject to quota or visa restraints. The petitioner contends that all
imported textile costumes should be classified in Chapters 61 or 62,
HTSUS, asserting that textile costumes are excluded from classification
under subheading 9505.90.6090, HTSUS, pursuant to Note 1(e), Chapter
95, which states that the chapter does not cover sports clothing or
fancy dress, of textiles, of chapter 61 or 62. If classified under
Chapter 61 or 62 of the HTSUS, the costumes would be dutiable and may
be subject to quota and visa restraints. This document invites comments
with regard to the correctness of the current classification.
DATES: Comments must be received on or before February 20, 1998.
ADDRESS: Written comments (preferably in triplicate) are to be
addressed to U.S. Customs Service, Office of Regulations and Rulings,
Attention: Commercial Rulings Division, 1300 Pennsylvania Avenue, NW.,
Washington, D.C. 20229. Comments submitted may be inspected at the
Commercial Rulings Division, Office of Regulations and Rulings, located
at 1300 Pennsylvania Avenue., NW., 3rd Floor, Washington, D.C.
FOR FURTHER INFORMATION CONTACT: Ann Segura Minardi, Textiles Branch,
(202-927-1368).
SUPPLEMENTARY INFORMATION:
Background
A petition has been filed under section 516, Tariff Act of 1930, as
amended (19 U.S.C. 1516), on behalf of an American manufacturer of
textile costumes. The petitioner contends that virtually identical
costumes to those manufactured by petitioner are being imported into
the U.S. and some of these textile costumes are being erroneously
classified by Customs under subheading 9505.90.6090, Harmonized Tariff
Schedule of the United States (HTSUS), as ``Festive, carnival or other
entertainment articles, including magic tricks and practical joke
articles; parts and accessories thereof: Other: Other: Other.'' The
provision is duty free under the general column one rate and costumes
classified under this provision are not subject to quota or visa
[[Page 66892]]
restraints. The petitioner claims that all imported textile costumes
should be classified in Chapters 61 or 62, HTSUS, asserting that
textile costumes are excluded from classification under subheading
9505.90.6090, HTSUS, pursuant to Note 1(e), Chapter 95. If classified
under Chapters 61 or 62, the costumes would be dutiable and may be
subject to quota and visa restraints.
Classification under the HTSUS is made in accordance with the
General Rules of Interpretation (GRIs). The systematic detail of the
harmonized system is such that virtually all goods are classified by
application of GRI 1, that is, 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 GRIs may then be applied. The Explanatory Notes (ENs) to
the Harmonized Commodity Description and Coding System, which represent
the official interpretation of the tariff at the international level,
facilitate classification under the HTSUS by offering guidance in
understanding the scope of the headings and GRIs.
Heading 9505, HTSUS, includes articles which are for ``Festive,
carnival, or other entertainment.'' However, Note 1(e), chapter 95,
HTSUS, excludes articles of ``fancy dress, of textiles, of chapter 61
or 62'' from chapter 95. The ENs to 9505, 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.
In interpreting the phrase ``fancy dress, of textiles, of chapter
61 or 62,'' Customs initially took the view that fancy dress included
``all'' costumes regardless of quality, durability, or nature of the
item. However, Customs has reexamined its view regarding the scope of
the term ``fancy dress'' as it relates to costumes. On November 15,
1994, Customs issued Headquarters Ruling Letter (HQ) 957318, which
referred to the settlement agreement of October 18, 1994, reached by
the United States and Traveler Trading in the case of Traveler Trading
Co. v. United States, Civil Action, #91-02-00084. In HQ 957318, Customs
stated that it had agreed to classify as festive articles in subheading
9505.90.6090, HTSUS, costumes of a flimsy nature and construction,
lacking in durability, and generally recognized as not being normal
articles of apparel.
Description of Merchandise
The imported costumes which are the subject of HQ 957318 are of the
same class or kind of merchandise as the costumes manufactured by
petitioner. Costumes, whether imported or domestically manufactured,
are traditionally worn in conjunction with the celebration of the
Halloween festival or to costume parties. The costumes at issue are
constructed of fabric comprised of man-made or natural fibers, but not
of paper. The costumes usually depict a character, creature, or
professional person, and often include accessories.
Issues Raised
Petitioner asserts that Customs interpretation of the term ``fancy
dress'' is incorrect since the term ``fancy dress'' is synonymous with
the word ``costume.'' In support of this assertion, petitioner cites
the ``Cambridge International Dictionary of English'' (1995) as stating
that the word ``costume'' is American for the British and Australian
term ``fancy dress.'' In addition, petitioner cites the ``Oxford
English Dictionary'' (2d ed. 1989) as stating that the definition of
the term ``fancy dress'' is ``[a] costume arranged according to the
wearer's fancy, usually representing some fictitious or historical
character.''
The petitioner states that the Nomenclature Committee of the
Customs Cooperation Council (predecessor to the World Customs
Organization) considered the scope of the term ``fancy dress'' and
determined that the proper classification for costumes was in Section
XI. Further, a recent decision by the Canadian International Trade
Tribunal held that the language of Note 1(e) regarding ``fancy dress,
of textiles'' included the inexpensive costumes before the Tribunal
because the costumes were ``arranged or made to suit the wearer's fancy
to represent fictitious characters'' and that subheading 9505, HTSUS,
covered ``goods [that] are more indicative of face disguises than of
actual clothing.''
In citing the ENs to Chapter 95, petitioner argues that the
examples set forth as ``articles of fancy dress'' in the ENs include
only items that act as accessories to the fancy dress but are not
themselves ``fancy dress'' because they do not clothe the body.
Further, petitioner claims that the phrase in the ENs, ``articles of
fancy dress'', does not include those articles made of textile material
and that an item of ``fancy dress'' is the actual costume, not the
accessories.
Petitioner states that the durability of the costume is irrelevant
to the determination of whether a costume is an item of apparel.
Petitioner cites the case of Admiral Craft Equip Corp. v. United
States, 82 Cust. Ct. 162, 164, C.D. 4796 (1979), in support of their
position that Customs should apply a ``use'' test in classifying
textile costumes and the case of Dynamics Classics, Ltd. v. United
States, 10 CIT 666 (1986), as setting forth factors to be considered in
applying the ``use'' test. In the Dynamics case the court cited United
States v. Carborundum Co., 63 CCPA 98, 102, C.A.D. 1172, 536 F.2d 373
(1976), for stating the elements used to establish the chief use of a
class or kind of merchandise: ``(1) the general physical
characteristics of the merchandise; (2) the expectations of the
ultimate purchaser, (3) the channels of trade, and (4) how it is
advertised and used.'' According to the petitioner, application of
these factors would require that a Halloween costume be classified as
an article of apparel in Chapter 61 or 62.
Finally , petitioner states that Court of International Trade (CIT)
decisions interpreting the Tariff Schedules of the United States
(TSUS), are inapplicable when classifying costumes under the HTSUS.
Petitioner argues that Customs should not consider the CIT's decisions
in Traveler Trading Co. v. United States, 713 F.Supp. 409 (CIT 1989),
and I.C.I. Worldwide, Inc. v. United States, 14 CIT 201 (1990), because
both were decided under the TSUS. Specifically, it is petitioner's
contention that the courts' decisions in those cases rested on the `` *
* * very broad and preclusive nature of the TSUS's definition of
`toys'.'' Petitioner further asserts that the classification of
costumes under the HTSUS is very different from the TSUS because
costumes are never classifiable as toys under the HTSUS and costumes
are specifically excluded from classification as articles of fancy
dress of textiles pursuant to Note 1(e) to Chapter 95.
Comments
Pursuant to Section 175.21(a), Customs Regulations (19 CFR
175.21(a)), before making a determination on the matter, Customs
invites written comments on the petition from interested parties.
The domestic party petition, as well as all comments received in
response to this notice will be available for public inspection in
accordance with the
[[Page 66893]]
Freedom of Information Act (5 U.S.C. 552), 1.4, Treasury Department
Regulations (31 CFR 1.4), and Section 103.11(b), Customs Regulations
(19 CFR 103.11(b)), between the hours of 9:00 a.m. to 4:30 p.m. on
regular business days, at the: U.S. Customs Service, Office of
Regulations and Rulings, Commercial Rulings Division, 1300 Pennsylvania
Avenue, NW., 3rd Floor, Washington, DC.
Authority
This notice is published in accordance with Section 175.21(a),
Customs Regulations (19 CFR 175.21(a)), 19 U.S.C. 1516.
Drafting information: The principal author of this document was Ann
Segura Minardi, Textiles Branch, Office of Regulations and Rulings,
U.S. Customs Service. However, personnel from other Customs offices
participated in its development.
Approved: December 5, 1997.
William F. Riley,
Acting Commissioner of Customs.
Dennis M. O'Connell,
Acting Deputy Assistant Secretary of the Treasury.
[FR Doc. 97-33291 Filed 12-19-97; 8:45 am]
BILLING CODE 4820-02-P
