**HQ 562339**

**April 1, 2002**

CLA-2 RR:CR:SM 562339 TJM

**CATEGORY**: Classification

**TARIFF NO:** 9817.00.9800; 9810.00.45

Area Port Director

# US Customs Service

112 West Stutsman

Pembina ND 58271

**RE:** AFR; Protest 3401-01-100013; Harlequin Costume & Dance Co.; GHY
USA, Inc.; 9817.00.9800, HTSUS; 6204.43.4010, HTSUS; 9810.00.4500,
HTSUS; costumes; Canada; regalia.

Dear Area Port Director:

The above-referenced protest was forwarded to this office for further
review. We have considered the evidence provided, and the points raised
by your office and the protestant. Our decision follows.

**FACTS:**

Harlequin Costume Company of Winnipeg, Canada, ("Harlequin")
manufactures costumes that are leased to theaters, opera companies, and
educational institutions in the United States. These custom-made
costumes are rented for temporary use, ranging from five to thirty days.
Productions include *Barber of Seville* and *Opera Dido and Anaeus*. At
the end of the rental, the renters return the costumes to Harlequin in
Canada. The costumes are then restocked and incorporated into
Harlequin's inventory of shows. They are then available for rentals by
others.

On February 14, 2001, the protestant, in responding to your office's CF
28 (Request for Information), stated, in pertinent part, that:

> . . . .Under the terms of rental they are required to ship them back
> to us within 2 to 3 days of the end of their production run, because
> we may have other rentals upcoming on some of the costumes for other
> customers. . . . Harlequin is not involved as the Manager or
> Proprietor of the performance. . . .No one from Harlequin accompanies
> the costumes to the U.S.

Your office issued a CF 29 (Notice of Action), informing the protestant
that the entries would be rate advanced in consideration of the correct
classification of the goods to be in subheading 6204.43.40, HTSUS. The
entries were liquidated rate advanced on May 4, 2001. On May 23, 2001,
The protestant through its customs broker, GHY USA, Inc., timely filed
the protest with an application for further review.

This protest covers four entries as noted below.

+------------------+---------------+-----------------+-----------------+
| **Entry No.**    | **Entry       | **Liquidation** | **Protest       |
|                  | Date**        |                 | Filed**         |
|                  |               | **Date**        |                 |
+------------------+---------------+-----------------+-----------------+
| xxx-xxxxx27-3    | 09/25/00      | 05/04/01        | 05/23/01        |
+------------------+---------------+-----------------+-----------------+
| xxx-xxxxx39-0    | 09/29/00      | 05/04/01        | 05/23/01        |
+------------------+---------------+-----------------+-----------------+
| xxx-xxxxx64-7    | 10/20/00      | 05/04/01        | 05/23/01        |
+------------------+---------------+-----------------+-----------------+
| xxx-xxxxx46-7    | 11/27/00      | 05/04/01        | 05/23/01        |
+------------------+---------------+-----------------+-----------------+

Renters of the articles of the above referenced entries include the
Fargo Moorhead Civic Opera, the Music Department of the University of
Memphis in Memphis, Tennessee, the Thalian Association of Wilmington,
North Carolina, and the University of Colorado School of Music.

On August 30, 2001, the National Commodity Specialist Division provided
an opinion on the applicable classification of the articles at issue in
this protest.

**ISSUE:**

Whether the costumes described above qualify for the duty-free provision
set forth in subheading 9817.00.9800, Harmonized Tariff Schedule of the
United States ("HTSUS"), or alternatively in subheading 9810.00.45,
HTSUS.

**LAW AND ANALYSIS:**

**I. [Standing and Timeliness]{.underline}**

Pursuant to 19 C.F.R. § 174.12(e), protests must be filed within 90 days
after the date of liquidation. In the instant case, the protest was
filed within 90 days from the date of liquidation. Furthermore, pursuant
to 19 C.F.R. § 174.12(a)(1), the protestant as the importer has standing
to file this protest on a matter regarding classification and duty rate
([See]{.underline} 19 C.F.R. § 174.11(b)).

##### Subheading 9817.00.9800 

Subheading 9817.00.98, HTSUS, provides that "\[t\]heatrical scenery,
properties, and apparel brought into the United States by proprietor or
manager of theatrical, ballet, opera or similar productions arriving
from abroad for temporary use by them in such production" will be free
of duty.

For articles to be classified in subheading 9817.00.98, HTSUS, three
basic requirements must be satisfied:

1)  The imported goods must consist of theatrical scenery, properties,
    and apparel;

2)  The goods must be brought into the U.S. by proprietors or managers
    of theatrical, ballet, opera or similar productions; and

3)  The subject goods must be for temporary use in such production.

In Headquarters Rulings Letter ("HRL") 561472, dated July 21, 2000,
Customs ruled that the duty-free provision provided under subheading
9817.00.98, HTSUS, applied in that case where a Canadian theatrical
production company temporarily imported scenery and apparel used for its
shows in the United States.

In the instant case, based on the facts provided, the protestant does
not meet the second criterion for classification in subheading
9817.00.98, HTSUS, which is that the qualified goods must be imported by
proprietors or managers of theatrical, ballet, opera or similar
productions arriving from abroad. In this case, and unlike HRL 561472,
the protestant is the manufacturer and the lessor of costumes that are
leased by proprietors or managers of the specified productions. The
protestant concedes that it is not a proprietor or a manager of
productions. Therefore, contrary to the requirements of subheading
9817.00.80, HTSUS, the apparel was not brought into the U.S. by a
proprietor or manager of theatrical or similar productions.

######## **Subheading 9810.00.45, HTSUS**

Additionally, protestant makes an alternative claim that the apparels
qualify as articles classifiable in subheading 9810.00.45, HTSUS, which
provides for "\[r\]egalia imported for the use of any public library,
any other public institution or any nonprofit institution established
for education, scientific, literary or philosophical purposes, or for
the encouragement of the fine arts."

Note 1, Subchapter X, Chapter 98, HTSUS, states that "\[e\]xcept as
provided in subheading 9810.00.20 and subheadings 9810.00.70,
9810.00.85, 9810.00.90 and 9810.00.95, or as otherwise provided for in
this U.S. note, the articles covered by this subchapter must be
exclusively for the use of the institutions involved, and not for
distribution, sale or other commercial use within 5 years after being
entered." Further, Note 2, Subchapter X, Chapter 98, HTSUS, states that
the term "regalia, as used in this subchapter, embraces only such
insignia of rank or office, emblems **or other articles as may be worn
upon the person** or borne in the hand during public exercises of the
institution, and does not include articles of furniture or fixtures, nor
regular wearing apparel, nor personal property of individuals."
(Emphasis added)

The two criteria that are important in the instant case in meeting the
requirements of subheading 9810.00.45, HTSUS include whether the
articles have commercial use and whether the articles qualify as
regalia.

In defining these two requirements for item 851.30, Tariff Schedules of
the United States ("TSUS") (the precursor to subheading 9810.00.45,
HTSUS), the U.S. Court of International Trade in [Eaves-Brooks Costume
Co., Inc. v. U.S.]{.underline}, 699 F. Supp 317 (Ct. Int'l Trade 1988),
noted in particular that:

> While there is clearly some imprecision in the language of the
> statute, i.e., "commercial use" and "public exercises" are not
> defined, the Court is impelled by logic and past practice to reject
> both bases of plaintiff's argument. **Kentucky Opera is a non-profit
> organization, as evidenced by its Internal Revenue Service exemption,
> 26 U.S.C. § 501(c)(3), which, while admittedly not entirely
> dispositive of the issue, is persuasive. .** . .
>
> As to whether or not the costumes constitute "Regalia" under the
> enumerated Tariff Schedule Item. . . .Dr. Robert W. Shuy, Ph.D., set
> forth twelve definitions of regalia. . .which were apparently extant,
> if not in common usage, during the period 1910 to approximately 1930,
> which was the period during which the tariff legislation under
> consideration initially was considered and enacted, including the
> "regalia" provisions. These definitions indicated that the term
> "regalia" originally referred to symbols of royalty, though its
> meaning has been expanded to include decorations or insignia of an
> order or office. According to plaintiff, these definitions show that
> during this period "regalia" did not include operatic and theatrical
> costumes. **But this overlooks the ongoing evolution and etymological
> development of the language -- and the modification of the regalia
> provisions since 1930.**
>
> The **opera costumes** which are under discussion **seem clearly to
> fall within the headnote provision:** "The term '*regalia'* as used in
> this part. . .embraces only such insignia of rank or office, emblems,
> ***or other articles as may be worn upon the person***. (Emphasis
> added).

[Eaves-Brooks Costume Co., Inc. v. U.S]{.underline}. at 319-20.

In regards to Note 1, Subchapter X, the costumes which are the subject
of this protest were used by Fargo Moorhead Civic Opera, the Music
Department of the University of Memphis in Memphis, Tennessee, the
Thalian Association of Wilmington, North Carolina, and the University of
Colorado School of Music. Assuming that the organizations that rented
the costumes from the protestant are non-profit organizations with the
purpose of furthering the fine arts or educating the public, it is our
opinion that they meet the interpretation of the first prong test as
articulated by the Court in the [Eaves-Brooks Costumes Co]{.underline}.

As for the second requirement, the Court in [Eaves-Brooks Costumes
Co]{.underline}. also interpreted the word "regalia" under the terms of
Note 2, Subchapter X. The Court noted that the word "regalia," although
originally meaning symbols of royalty has evolved to include opera
costumes "worn upon the person." In the instant case, the costumes worn
by opera performers do not appear to be significantly dissimilar from
the case before the [Eaves-Brooks Costumes Co.]{.underline} Court.

Therefore, assuming the protestant is able to provide sufficient
evidence of the non-profit status of the institutions that rented the
costumes at issue, the protest should be granted on the grounds that the
protestant's alternative claim for classification of the articles in
subheading 9810.00.45, HTSUS, has been met.

**HOLDING:**

For the foregoing reasons, the articles at issue do not meet the
requirements of subheading 9817.00.98, HTSUS. However, assuming that the
protestant can provide sufficient evidence that the renters of its
costumes are non-profit educational institutions or non-profit
organizations for the purpose of furthering the fine arts, the protest
should be granted on the grounds that the articles meet the duty-free
provision provided under subheading 9810.00.45, HTSUS.

This decision should be mailed by your office to the protestant no later
than sixty days from the date of this letter. On that date, the Office
of Regulations & Rulings will take steps to make the decision available
to Customs Personnel and to the public on the Customs Home Page on the
World Wide Web at www.customs.gov, by means of the Freedom of
Information Act and other means of public distribution.

Sincerely,

John Durant

Director

> Commercial Rulings Division