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HQ 084322


August 23, 1989

CLA-2 CO:R:C:G 084322 CMR

CATEGORY: CLASSIFICATION

TARIFF NO.: 6211.43.0080, 6204.63.3510, 6217.10.0030, 9505.90.6000, 6211.43.0090

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

RE: Classification of two adult Halloween costumes

Dear Ms. Dugan:

This ruling is in response to your letter of April 25, 1989, on behalf of Mervyns, requesting the classification of two adult Halloween costumes. The costumes, a pirate and a clown, are manufactured by Plenty Ocean in Taiwan.

FACTS:

The pirate costume consists of five pieces--a black felt pirate's hat with wire brim, a 100 percent nylon acetate vest, a pair of 100 percent nylon acetate pants with a red sash, a black felt eye patch, and a gold colored metal earring.

The clown costume consists of a 100 percent nylon satin jumper, a red foam nose, and a multi-colored acrylic wig.

ISSUE:

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?

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.

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:

The articles of the pirate costume are classifiable as follows:

The black acetate vest is classifiable in other garments, women's or girls', of man-made fibers, vests, in subheading 6211.43.0080, HTSUSA, textile category 659, dutiable at 17 percent ad valorem.

The nylon acetate pants are classifiable in women's or girls' suits, ensembles, etc., trousers, bib and brace overalls, breeches and shorts, of synthetic fibers, other, other, women's, in subheading 6204.63.3510, HTSUSA, textile category 648, dutiable at 30.4 percent ad valorem.

The red sash is classifiable in the provision for other made up clothing accessories, of man-made fibers, subheading 6217.10.0030, HTSUSA, textile category 659, dutiable at 15.5 percent ad valorem.

The eye patch, hat, and gold colored metal earring are classifiable as toys in subheading 9505.90.6000, HTSUSA, dutiable at 3.1 percent ad valorem.

The clown costume is classified as a set by application of GRI 3(b). It is classified under the provision for the nylon jumper in subheading 6211.43.0090, HTSUSA, which provides for women's or girls' other garments of man-made fibers. The costume falls in textile category 659 and is 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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