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HQ 085780


October 30, 1989

CLA-2 CO:R:C:G 085780 CMR

CATEGORY: CLASSIFICATION

TARIFF NO.: 6211.33.0060, 6211.43.0090, 6114.30.3070, 9505.90.6000,

Mr. John Moriarty
Spearhead Industries, Inc.
9971 Valley View Road
Minneapolis, Minnesota 55344

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

Dear Mr. Moriarty:

This ruling is in response to your letter of October 29, 1987, requesting the classification of various Halloween costumes.

FACTS:

Samples of Spearhead's item #0450 adult Halloween costumes in 12 styles were submitted for our review.

The sample costumes include a witch, vampire, nun, priest, harem girl, sheik, clown man, clown woman, devil woman, devil man, bride of Frankenstein, and Frankenstein. The costumes are made of flame- retardant 100 percent nylon fabric and are one size fits all. Each costume has a foam-lined, plastic-coated paper mask. The costumes are made in China.

ISSUE:

Are the submitted 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 . . .

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.

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.

The paper masks if imported separately would be classifiable as festive articles under heading 9505, HTSUSA, however, when imported with single costume garments, they will be classified as a set in accordance with the above stated rationale.

HOLDING:

The submitted costumes are considered fancy dress of Section XI and are, therefore, excluded from classification as toys in Chapter 95. They are classified as follows:

The clown man costume, consisting of woven nylon clown pants with suspenders and wired waist and a mask, is classified as a set under the provision for the clown pants. The clown pants are classified in the provision for men's other garments of man- made fibers, other, in subheading 6211.33.0060, HTSUSA, textile category 659, dutiable at 17 percent ad valorem.

The clown woman costume, consisting of woven nylon clown pants with suspenders and wired waist and a mask, is classified as a set under the provision for the clown pants. The clown pants are classified in the provision for women's other garments of man-made fibers, other, in subheading 6211.43.0090, HTSUSA, textile category 659, dutiable at 17 percent ad valorem.

The witch costume, consisting of a woven nylon floor length garment with a jagged-cut not hemmed bottom, knit mesh sleeves, elastic at the neck and a cord belt, and a mask is classified as a set under the provision for the witch garment. The garment is classified under the provision for women's other garments of man-made fibers, other, in subheading 6211.43.0090, HTSUSA, textile category 659, dutiable at 17 percent ad valorem.

The vampire costume, consisting of a woven nylon cape and a mask is classified as a set under the provision for the cape. The cape is classified under the provision for men's other garments of man-made fibers, other, in subheading 6211.33.0060, HTSUSA, textile category 659, dutiable at 17 percent ad valorem.

The sheik costume, consisting of a woven nylon robe with a tie back and long sleeves and a mask, is classified as a set under the provision for the robe. The robe is classified in the provision for men's other garments of man-made fibers, other, in subheading 6211.33.0060, HTSUSA, textile category 659, dutiable at 17 percent ad valorem.

The harem girl costume, consisting of knit mesh harem pants, a woven nylon top with knit mesh long sleeves, and a mask, is not classifiable as a set since the costume consists of more than one garment. The knit mesh harem pants are classified under the provision for women's other garments of man-made fibers, other,
other, in subheading 6114.30.3070, HTSUSA, textile category 659, dutiable at 16.1 percent ad valorem. The nylon top is classi- fied under the provision for women's other garments of man-made fibers, blouses, shirts and shirt-blouses excluded from heading 6206, in subheading 6211.43.0060, HTSUSA, textile category 641, dutiable at 17 percent ad valorem. The paper mask is classified as a festive article in subheading 9505.90.6000, HTSUSA, dutiable at 3.1 percent ad valorem.

The devil man costume, consisting of a woven poncho-type garment and a mask is classified as a set under the provision for the poncho-type garment. The garment is classified under the provision for men's other garments of man-made fibers, other, in subheading 6211.33.0060, HTSUSA, textile category 659, dutiable at 17 percent ad valorem.

The devil woman costume, consisting of a woven nylon floor length garment with a jagged-cut not hemmed bottom, knit mesh sleeves, elastic at the neck and a cord belt, and a mask is classified as a set under the provision for the witch garment. The garment is classified under the provision for women's other garments of man-made fibers, other, in subheading 6211.43.0090, HTSUSA, textile category 659, dutiable at 17 percent ad valorem.

The bride of Frankenstein costume, consisting of a long woven nylon robe with a tie back and long sleeves and a mask, is classified as a set under the provision for the robe. The robe is classified in the provision for women's other garments of man-made fibers, other, in subheading 6211.43.0090, HTSUSA, textile category 659, dutiable at 17 percent ad valorem.

The nun costume, consisting of a long woven nylon robe with a wide nylon knit bib-type collar, long sleeves, and a tie back, and a mask, is classified as a set under the provision for the robe. The robe is classified under the provision for women's other garments of man-made fibers, other, in subheading 6211.43.0090, HTSUSA, textile category 659, dutiable at 17 percent ad valorem.

The priest costume, consisting of a long woven nylon robe with a stand-up collar, long sleeves, and a tie back, and a mask, is classified as a set under the provision for the robe. The robe is classified under the provision for men's other garments of man-made fibers, other, in subheading 6211.33.0060, HTSUSA, textile category 659, dutiable at 17 percent ad valorem.

We have been unable to locate the Frankenstein costume. However, since it appears to consist of a jacket, pants, and a mask, is not classifiable as a set since it consists of more
than one garment. Without the sample, we are unable to give a specific classification for the costume, but we can say that it would be classified in the appropriate provisions of chapters 61 or 62.

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 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, which is updated weekly and is 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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