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HQ 083852


May 22, 1989

CLA-2 CO:R:C:G 083852 SM

CATEGORY: CLASSIFICATION

TARIFF NO.: 6211.43.0090

Ms. Lorraine M. Dugan
Associated Merchandising Corporation
50 Terminal Road
Secaucus, NJ 07094

RE: Tariff classification of pumpkin costume

Dear Ms. Dugan:

Your letter of February 8, 1989, on behalf of Mervyns, addressed to our New York office, requesting a tariff classi- fication ruling for a felt pumpkin costume, has been referred to this office for reply.

FACTS:

A sample of Style PU-2, to be imported from Taiwan, was submitted. It consists of three pieces, of acrylic, all packaged in a clear plastic hanging container with a sheet of cardboard showing a photograph of a woman wearing the costume. The largest piece of the costume is an orange sack, of sorts, with openings for the wearer's head, arms, and legs. A circular orange headpiece with a green "stem" attached to the top and a black half mask are the other two pieces.

ISSUE:

How is the pumpkin costume classified?

LAW AND ANALYSIS:

Classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) is in accordance with the General Rules of Interpretation (GRI's). GRI 1 provides that classification is determined first in accordance with the terms of the headings of the tariff and any relative section and chapter notes and then, if nothing in the headings or notes otherwise requires, in accordance with the remaining GRI's.

Heading 9505, HTSUSA, provides for festive, carnival, or other entertainment articles. The Explanatory Notes (EN), the official interpretation of the HTSUSA at the international
level, indicate that this heading is intended to include articles of fancy dress, such as masks, false ears and noses, wigs, false beards, and moustaches. However, Legal Note 1(e) of Chapter 95 excludes from the headings of that chapter arti- cles of fancy dress of textiles of Chapters 61 or 62.

The tariff does not define fancy dress. The definition of a classification term is a question of law. Converters Div. of American Hospital Supply Corp. v. United States, 861 F.2d 710,712 (Fed. Cir. 1988). Tariff terms are construed according to their common and commercial meanings which are presumed to be the same. Nippon Kogaku (USA), Inc. v. United States, 673 F.2d 380, 382 (CCPA 1982). Webster's Third New International Dictionary, Unabridged, at 822 (1965) defines fancy dress as:
a costume (as for a masquerade or party) depart- ing from currently conventional style and usu. representing a fictional or historical character, an animal, the fancy of the wearer, or a par- ticular occupation . . .

As a masquerade or party costume, Style PU-2 falls within this definition of fancy dress. Since it is of textile, it is ex- cluded from Chapter 95 if classifiable in Chapter 61 or 62.

Heading 6211, HTSUSA, providing for track suits, ski- suits, swimwear, and other garments, would cover the main portion of the pumpkin costume. Heading 6505, HTSUSA, includ- ing headgear made up from textile fabric, would cover the headwear portion of the costume. Heading 9505, HTSUSA, covers the mask. Since no single heading provides for all three articles, classification cannot be determined under GRI 1.

GRI 3 generally provides for the classification of goods that appear classifiable under two or more headings. GRI 3(a), providing for classification under the heading that is the most specific, does not apply when, as here, each heading considered refers to part only of the goods.

GRI 3(b) provides that "[m]ixtures, 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 classi- fied as if they consisted of the material or component which gives them their essential character . . . ."

The EN for GRI 3(b) provide interpretation of the terms essential character, composite goods, and goods put up in sets for retail sale. With regard to composite goods they state:

For the purposes of [GRI 3(b)], composite goods made up of different components shall be taken to mean not only those in which the components are attached to each other to form a practically inseparable whole but also those with separable components, provided these components are adapted one to the other and are mutually complementary and that together they form a whole which would not normally be offered for sale in separate parts . . . . As a general rule, the components of these composite goods are put up in a common packing.

The main portion of the pumpkin costume and the head covering fall within this description. Separable components, they are adapted to one another in that together they enable the wearer to convey the image of the pumpkin or, more properly, the jack-o'-lantern, since appliques on the front of the costume portray the well-known facial features of that Halloween fix- ture. The two pieces are packed together and would not normally be offered for sale separately.

However, the mask cannot be described as forming com- posite goods together with the "pumpkin" and its "lid." There is no particular adaptation between the pumpkin parts and the black mask for the wearer's eyes; the mask is of a common type often sold separately. However, the mask can still be classi- fied with the other two pieces of the whole falls within the description of sets. The EN state that goods put up in sets for retail sale are those which:

(a) consist of at least two different articles which are, prima facie, classifiable in different headings . . .;

(b) consist of products or articles put up to- gether to meet a particular need or carry out a specific activity; and

(c) are put up in a manner suitable for sale directly to users without repacking . . . .

The pumpkin-mask combination consists of three articles prima facie classifiable under different headings. They are put up together to enable the wearer to participate in Halloween activities, which normally involve costumes with masks. We assume that they are imported packed for sale directly to users without repacking. Thus, the pumpkin outfit and mask meet the requirements for classification as a set.

The EN state further that the factor determining essen- tial character will vary with different kinds of goods. It may be "the nature of the material or component, its bulk, quantity, weight or value, or . . . the role of a constituent material in relation to the use of the goods." With regard to Style PU-2, it is the pumpkin-lid composite that provides the essential character. Although Halloween costumes generally include masks, the mask of Style PU-2 has no particular con- nection with dressing up as a pumpkin and would not be the principal motivating factor in the purchase of the costume.

Style PU-2, a set consisting of a mask and a garment- headwear composite, is classifiable as though consisting of the composite. Since it will fall under heading 6211, HTSUSA, it is excluded from Chapter 95 by Note 1(e) of that chapter.

Although the package shows a woman wearing the costume, there does not seem to be anything about it to identify it as either men's and boys' or women's and girls'. It is therefore classified under the subheading for women's and girls' gar- ments. Note 8, Chapter 62, HTSUSA.

HOLDING:

Style PU-2 is classified under subheading 6211.43.0090, HTSUSA, textile category 659, a provision for other women's and girls' garments, of man-made fibers, not knitted or cro- cheted.

Because of the changeable nature of the statistical annotation, i.e., the ninth and tenth digits of the tariff number, and of the textile restraint categories, you should contact your local Customs office before importing this mer- chandise to determine the current status of any import restraints or requirements.

Sincerely,

John Durant, Director
Commercial Rulings Division

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