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HQ 084601


September 8, 1989

CLA-2 CO:R:C:G 084601 CMR

CATEGORY: CLASSIFICATION

TARIFF NO.: 6114.30.3070, 6110.30.3055, 6104.63.2010, 6117.80.0030, 9505.90.6000, 6114.30.3070, 6114.30.3070, 6114.30.3070

Leonard Fertman, Esq.
2049 Century Park East
Suite 1800
Los Angeles, California 90067

RE: Classification of textile costumes

Dear Mr. Fertman:

This ruling is in response to your letter of May 12, 1989, on behalf of your client, National Theme Productions, requesting the classification of various costumes for children and adults. You have also requested that we reconsider HRL 082626 of December 21, 1988, in which we ruled textile costumes are articles of fancy dress. Five samples have been submitted for our review. The costumes are assembled in Mexico and will be imported through the port of San Ysidro.

FACTS:

Style 10297, Serena the Elusive Unicorn costume, consists of a top-like garment of 90 percent polyester/10 percent acrylic, legging pieces and mitts, a vinyl belt, and a headpiece and tailpiece of gathered netting material. The costume sample is sized for adults.

Style 10354, Harem Scarem, The Egyptian Mummy costume, consists of a 100 percent polyester knit long-sleeved top, matching polyester knit pants with an elastic waistband, a polyester hood and face guard, and polyester knit shoe covers with fabric half-soles with laminated plastics. The costume sample is sized for adults.

Style 25191, Fur-R-Roshus costume, consists of a 100 percent polyester knit jumpsuit with an open back with a tie closure, a tail that buttons to the jumpsuit, mitts of polyester knit and acrylic plush, anklets of acrylic plush and a lion-like headpiece of acrylic plush. The costume sample is sized for children.

Style 10299, Ghost costume, consists of a body garment of (assumably) 100 percent polyester knit fabric and a headpiece of the same fabric with a pompom nose and woven net eyes and mouth. The costume sample is sized for adults.

Style 10247, Godzilla costume, consists of a jumpsuit-like garment with a open back with a tie closure and a long, dragon-like tail, a headpiece, mitts, and shoe covers. The costume pieces are made of 100 percent polyester fabric and in some pieces (the tail, headpiece, and shoe covers) the fabric covers a foam material.

ISSUE:

Are the costumes at issue "apparel"?

Are the 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?

Will Customs maintain the position adopted in HRL 082626 of December 21, 1988, that textile costumes are articles of fancy dress?

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.

As you noted, fancy dress is defined in Mary Brooks Picken's The Fashion Dictionary (1973) 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 . . .

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

1. Complete dress or apparel, including all outer garments and accessories worn at one time. Also, dress in general; but incorrectly used for a dress. Compare DRESSES. 2. Type of dress for wear to fancy dress ball. See FANCY DRESS. 3. Type of dress characteristic of any country, period, class, or calling. (Bold added) (Page 90)

From the same source, we find the following terms and definitions:
apparel: Clothing of all sorts; * * * (Page 6)
clothing: Any wearing apparel. For types, see SPORTS CLOTHES and DRESSES. (Page 70)
garment: Any article of apparel, chiefly one made of fabric. (Page 160)

Under the topic heading "Dress and Dresses" is the directive "Also see FANCY DRESS." (Page 109)

In Webster's II New Riverside University Dictionary, at 118 (1984), apparel is defined as: "1. Clothing. 2. Something that covers or adorns." Costume is defined as: "1. A prevalent style of dress, including clothing, accessories, and hairdos. 2. A style of dress typical of a particular time, country, or people, often worn in a play or at a festival. 3. A set of clothes appropriate for a particular occasion or season."

From the above definitions, it appears that the terms apparel, clothing, and garment are interchangeable. It also appears clear that fancy dress is a costume and that a costume is apparel or clothing of a particular type. Therefore, if the costumes at issue are fancy dress, as we believe they are, then they are apparel.

We note your objection to the statement in HRL 082626 that "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." However, we disagree with your application of the definitions you have quoted to support your argument that fancy dress applies only to costumes of exceptional quality. The definition of the term fancy from The Random House Dictionary of the English Language that you cite is but one definition, and the term "fancy dress" is a term of art and defined by many sources as a costume or masquerade costume.

We believe additional support for the position we have taken in regard to the meaning of fancy dress in the Note 1(e) exclusion of Chapter 95, can be found in a vote taken by the Nomenclature Committee of the Customs Cooperation Council

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.

Hats and headpieces are generally classified in Chapter 65 of the HTSUSA. However, Chapter 65, Note 1(c), excludes "doll" hats, other toy hats or carnival articles of Chapter 95. Chapter 95, Note 1(e) excludes sports clothing or fancy dress, of textiles, of Chapter 61 or 62. While the costume hats and headpieces could be considered to fall within the meaning of fancy dress of textiles, they would not be classified in Chapter 61 or 62, but in Chapter 65; therefore, the exclusionary note does not apply.

HOLDING:

Based on the above analysis, Customs will maintain the position adopted in HRL 082626 that textile costumes are articles of fancy dress.

Style 10297, Serena the Elusive Unicorn costume, is classifi- able as a set by application of GRI 3(b). The costume is classified in the provision for the top-like garment. The remaining pieces are accessories to this garment and used to help create the costume. The costume is classified in the provision for other garments, knitted or crocheted, of man-made fibers, other, subheading 6114.30.3070, HTSUSA, textile category 659, dutiable at 16.1 percent ad valorem.

Style 10354, Harem Scarem, The Egyptian Mummy, cannot be classified as a set because it consists of more than one garment. The long-sleeved knit top is classified under the provision for sweaters, pullovers, sweatshirts, waistcoats (vests) and similar articles, knitted or crocheted, of man-made fibers, other, other, subheading 6110.30.3055, HTSUSA, textile category 639, dutiable at 34.2 percent ad valorem. The knit pants are classified under the provision for women's or girls' trousers, bib and brace overalls, breeches and shorts, of synthetic fibers, other, other, trousers and breeches, subheading 6104.63.2010, HTSUSA, textile category 648, dutiable at 30 percent ad valorem. The leggings and face guard are classified as other made up clothing accessories, knitted or crocheted, other accessories, of man-made fibers, subheading 6117.80.0030, HTSUSA, textile category 659, dutiable at 15.5 percent ad valorem. The headpiece is classified as a festive, carnival or other entertainment article in subheading 9505.90.6000, HTSUSA, dutiable at 3.1 percent ad valorem.

Style 25191, the Fur-R-Roshus costume, is classifiable as a set by application of GRI 3(b). The costume is classified in the provision for the knit jumpsuit. The remaining pieces are accessories to this garment and used to help create the costume. The costume is classified in the provision for other garments, knitted or crocheted, of man-made fibers, other, subheading 6114.30.3070, HTSUSA, textile category 659, dutiable at 16.1 percent ad valorem.

Style 10299, the Ghost costume, is classifiable as a set by application of GRI 3(b). The costume is classified in the provision for the body garment which is classified in the provision for other garments, knitted or crocheted, of man-made fibers, other, subheading 6114.30.3070, HTSUSA, textile category 659, dutiable at 16.1 percent ad valorem.

Style 10247, Godzilla costume, is classifiable as a set by application of GRI 3(b). The costume is classified in the provision for the jumpsuit-like garment which is classified in the provision for other garments, knitted or crocheted, of man-made fibers, other, subheading 6114.30.3070, HTSUSA, textile category 659, dutiable at 16.1 percent ad valorem.

The designated textile and apparel category may be subdivided into parts. If so, the visa and quota requirements applicable to the subject merchandise may be affected. Since part categories are the result of international bilateral agreements which are subject to frequent renegotiations and changes, to obtain the most current information available, we suggest that you check, close to the time of shipment, the Status Report on Current Import Quotas (Restraint Levels), an internal issuance of the U.S. Customs Service, available for inspection at your local Customs office.

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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