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HQ 084216


July 27, 1989

CLA-2 CO:R:C:G 084216 CMR 839164

CATEGORY: CLASSIFICATION

TARIFF NO.: 6211.43.0090

Mr. Scott Fraistat
Topstone Industries, Inc.
81 Sand Pit Road
Danbury, Connecticut 06810

RE: Classification of a child's tigress costume

Dear Mr. Fraistat:

This ruling is in response to your letter of April 3, 1989, requesting the classification of a child's tigress costume.

FACTS:

The merchandise at issue is a child's tigress costume, item number 88361, consisting of a body suit with a tail, headpiece and mask. The body suit has red bows at the end of the sleeves and one on the tail. It has a ruffle skirt and back zipper closure. Elastic is inserted at the ends of the long sleeves and long pants. The headpiece has a red bow and black ears. All of the components are made of 65 percent polyester and 35 percent cotton woven fabric.

The merchandise will be purchased in the Philippines and entered through the port of New York.

ISSUE:

Is the costume classifiable as a toy in Chapter 95, or is it 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:

The components of the tigress costume, item number 88361, are classifiable as a set by application of GRI 3(b). They are classified under the provision for the body suit in women's or girls' other garments of man-made fibers, other, subheading 6211.43.0090, textile category 659, 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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