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HQ 084103


July 27, 1989

CLA-2 CO:R:C:G 084103 CMR

CATEGORY: CLASSIFICATION

TARIFF NO.: 6114.30.3070, 6104.53.2020, 9505.90.6000, 6204.43.4040, 6104.43.2020

Ms. Lorraine Dugan
Associated Merchandising Corporation
50 Terminal Road
Secaucus, New Jersey 07094

RE: Classification of various Halloween costumes under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA)

Dear Ms. Dugan:

This ruling is in response to your letter of April 4, 1989, on behalf of Mervyns, requesting the classification of three Halloween costumes for girls.

FACTS:

Three costumes were submitted for review. They are style BG-1 (Barbarian Girl), style FE-1 (Flapper Girl), and Style SR-1 (Sorceress).

Style BG-1, barbarian girl, is a three-piece costume. It consists of a vest and skirt of 100 percent acrylic plush with leopard print, and a polyester necklace.

Style FE-1, flapper girl, is also a three-piece costume. It consists of a 100 percent nylon satin dress with two shoulder straps and two rows of fringe at the bottom, a spangle headband with elastic and a feather, and a faux pearl necklace.

Style SR-1, sorceress, is a four-piece costume consisting of a 100 percent polyester dress, a vinyl belt with a red bat pattern in the middle, a black collar with a diamond pin, and a 100 percent polyethylene wig.

The costumes are sized for young girls. They are manufactured in Taiwan by Plenty Ocean.

ISSUE:

Are the Halloween costumes classifiable as toys in Chapter 95, or are they considered fancy dress classifiable in Section XI by application of exclusion Note 1(e) of Chapter 95?

LAW AND ANALYSIS:

Under the HTSUSA, toys are classified in Chapter 95. How- ever, Note 1(e) excludes articles of "fancy dress, of textiles, of chapter 61 or 62" from classification within Chapter 95.

Fancy dress is defined in Mary Brooks Picken's The Fashion Dictionary as:

Costume representing a nation, class, calling, etc., as worn to costume ball or masquerade party. (Page 134)

Webster's Third New International Dictionary, Unabridged, at 822 (1965) defines fancy dress as:
a costume (as for a masquerade or party) departing from currently conventional style and usu. representing a fictional or historical character, an animal, the fancy of the wearer, or a particular occupation . . .

The Note 1(e) exclusion includes all fancy dress of textile materials and appears to leave no room for differentiating between costumes based on their construction, utilitarian value, and use.

In October 1983, the Nomenclature Committee of the Customs Cooperation Council, at the request of the Australian Administration, considered the classification of children's "Spiderman" and "Hulk" suits; a cowboy suit composed of a waistcoat and chaps with holster, of textile material; a cowboy suit composed of a waistcoat and trousers incorporating a simulated belt with holster, of textile material; and an Indian girl costume consisting of a dress, a headband and simulated braids, of textile material. The classification issue then, as in this case, was whether the costumes were classifiable as toys in Chapter 97 (now known as Chapter 95), or as textile articles of Section XI. The Committee decided the costumes were fancy dress, classifiable in Section XI by application of exclusion Note 1(e) to Chapter 97 (now Chapter 95). Annex F/5 to Doc. 30.550 E (NC/51/Oct. 83).

Although not bound by this decision of the Nomenclature Committee, Customs believes it illustrates the intent of the Note 1(e) exclusion to Chapter 95, and the meaning of fancy dress as it is used in that exclusion. In accordance with the Committee's decision and Note 1(e) to Chapter 95, costumes of textile materials are classifiable in Section XI.

Note 13 of Section XI provides:

Unless the context otherwise requires, textile garments of different headings are to be classified in their own headings even if put up in sets for retail sale.

Note 13 of Section XI requires that textile garments of differ- ent 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 13, the articles which may be packaged with the garments must also be classified separately. How- ever, costumes consisting of single garments with accessories do not fall into the purview of Headnote 13. Therefore, single garments with accessories may be classifiable as sets by application of General Rule of Interpretation 3(b) according to the item in the set from which the set derives its essential character. Customs believes that the essential character of costumes consisting of single garments with accessories is generally imparted by the garment since without the garment you would merely have a collection of accessory items.

HOLDING:

Style BR-1, barbarian girl, cannot be classified as a set because it consists of more than one garment. The vest is classified under the provision for women's or girls' other garments, knitted or crocheted, of man-made fibers, subheading 6114.30.3070, HTSUSA, textile category 659, dutiable at 16.1 percent ad valorem. The skirt is classified under the provision for girls' skirts of synthetic fibers, subheading 6104.53.2020, textile category 642, dutiable at 17 percent ad valorem. The polyester necklace is a novelty type item and classified as a toy in subheading 9505.90.6000, HTSUSA, under the provision for festive, carnival or other entertainment articles. The rate of duty for the necklace is 3.1 percent ad valorem.

Style FE-1, flapper girl, is classified as a set by application of GRI 3(b). It is classified under the provision for the satin nylon dress in subheading 6204.43.4040, HTSUSA, textile category 636, dutiable at 17 percent ad valorem.

Style SR-1, sorceress, is also classified as a set by application of GRI 3(b). It is classified under the provision for the polyester dress in subheading 6104.43.2020, HTSUSA, textile category 636, dutiable at 17 percent ad valorem.

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 your local Customs office prior to importation of this merchandise to determine the current status of any import restraints or requirements.

Sincerely,

John Durant, Director
Commercial Rulings Division

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