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NY A83511

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June 7, 1996

CLA-2-61:RR:NC:WA:353 A83511

CATEGORY: CLASSIFICATION

TARIFF NO.: 3926.20.9050; 6104.43.2010; 6104.43.2020; 6204.62.4020; 6211.42.0075; 6211.42.0081; 6215.90.0015; 6217.10.9010; 9505.90.6020; 9505.90.6090

Mr. Rolando Portal
Pronto Cargo Brokers, Inc.
7330 N.W. 66 Street
Miami, Florida 33166-3009

RE: The tariff classification of Halloween Costumes from El Salvador

Dear Mr. Portal

In your letter dated May 2, 1996, received in our office on May 9,1996, you requested a tariff classification ruling. Five samples were submitted for examination with your ruling request. You indicate that the costumes will be assembled in El Salvador from US fabricated components.

The submitted samples are as follows:

The Mask costume stated to be made from 100% woven cotton, consists of a jacket w/polka dot lining, shirt dickie, pants, printed polka dot tie and vinyl spats for shoes.

The jacket is long sleeved and knee length that splits at the waist to form tails in the rear. The fabric is heavy weight twill with all inside seams. The front has three false pockets and a one button hole closure. The jacket is constructed of multiple panels with inside seams that are completed with overlock stitching with an additional row of stitching, shoulder pads, with inner fabric that is napped to the waist and with tails that are lined with additional fabric with a polka dot design.. The collar and lapel are double layered fabric. The cuffs are folded over and sewn down. The pants of are heavy weight twill, napped on the inside with a false side pocket, false fly front, an elasticized waist at the rear and cuffs that are turned over and sewn down. All seams are inside seams that are finished with overlock stitching with an additional row of stitching. The shirt dickie has a double faced collar with fabric ties at the neck and elastic straps on each side which mimic suspenders. All seams are folded over and sewn down. The necktie has folded over seams that are sewn down. No sample was received for the vinyl spats.

Blackhawk costume, stated to be made from 100% woven cotton, consists of wrap waist ninja pants, wrap jacket, gloves, and hood (stated to be 100% polyester).

The wrap pants have slits at the waist sides that are closed with wide fabric ties and fabric ties at the cuffs and above the ankle. All seams are inside seams with edges that are folded over and sewn down. The jacket is collarless with a full front opening with no closures. All seams are inside seams with edges that are folded over and sewn down with multiple rows of stitching. The gloves are not gloves but wrist covers with an elasticized opening at one end and a wider opening at the other which is secured to the palm by means of an elastic band between the thumb and forefinger. All seams are inside with edges folded over and sewn down. The hood covers the head with an opening for the eyes. Fabric edges are sewn with exposed overlock stitching.

Maid In Heaven costume, stated to be made from 100% polyester woven fabric (is actually of a knit construction) are in two sizes, Style #C-18 for girls and #A-45 for adults. Each costume consists of a one piece dress with elasticized waistband, petticoat and lace trim at the elasticized neckline and arm openings. All seams are inside with fabric edges folded over and sewn down. Accessories are a lace trimmed apron and headpiece.

Child Gould Robe costume stated to be made of 100% polyester, is of knit construction. The long sleeved robe features an attached hood with fabric ties at the neck and comes with a fabric belt. The hood opening, cuffs and bottom hem of the robe are unfinished fabric edges.

A sample for the Tiger Shark costume was not furnished for examination and therefore we will not comment on its classification at this time.

ISSUE:

Whether the costumes are festive articles of chapter 95 or of textile articles of fancy dress classifiable under chapter 61 or 62.

LAW AND ANALYSIS

Classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) is made in accordance with the General Rules of Interpretation (GRI's). The systematic detail of the harmonized system is such that virtually all goods are classified by application of GRI 1, that is, according to the terms of the headings of the tariff schedule and ant relative section of the chapter notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and the headings and legal notes do not otherwise require, the remaining GRI's may then be applied. The Explanatory Notes (ENs) to the Harmonized Commodity Description and Coding System, which represent the official interpretation of the tariff at the international level, facilitate classification under the HTSUSA by offering guidance in understanding the scope of the headings and GRIs.

Heading 9505, HTSUSA, includes articles which are for "Festive, carnival, or other entertainment." It must be noted, however, that Note 1(e), chapter 95, HTSUSA, does not cover "fancy dress, of textiles, of chapter 61 or 62." The EN's to 9505, state that the heading covers:

(A) Festive, carnival or other entertainment articles, which in view of their intended use are generally made of non-durable material. They include:

(3) Articles of fancy dress, e.g., masks, false ears and noses, wigs, false beards and moustaches (not being articles of postiche- heading 67.04), and paper hats. However, the heading excludes fancy dress of textile materials,, of chapter 61 or 62.

In interpreting the phrase "fancy dress, of textiles, of chapter 61 or 62," Customs initially took the view that fancy dress included "all" costumes regardless of quality, durability, or the nature of the item. However, Customs has reexamined its view regarding the scope of the term "fancy dress" as it related to costumes. On November 15, 1994, Customs issued Headquarters Ruling Letter (HRL) 957318, which referred to the settlement agreement of October 18, 1994, reached by the United States and Traveler Trading. In HRL 957318, Customs stated that it had agreed to classify as festive articles in subheading 9505.90.6090, costumes of a flimsy nature and construction, lacking in durability, and generally recognized as not being a normal article of apparel.

In view of the aforementioned, Customs must distinguish between costumes of chapter 95 (festive articles), and costumes of chapters 61 and 62 (articles of fancy dress). This can be accomplished by separately identifying characteristics in each article that would indicate whether or not it is of a flimsy nature and construction, lacking in durability, and generally recognized as a normal article of apparel.

The submitted samples except the Child Gould Robe are comparable in construction and durability. The amount and quality of finishing is such that the articles are neither flimsy in nature or construction. Edges have been hemmed; there are decorative and stylish elements in addition to the items of trim, and other finishing touches have been constructed in such a manner as to enhance the costumes' overall durability. It is reasonable to conclude that these costumes are comparable to articles generally recognized as apparel in that they have been designed for repeated wear and cleaning over extended periods of time. As such, these costumes are excluded from heading 9505, HTSUSA, because they are classifiable as articles of fancy dress of textile materials, of chapter 61 or 62. See Note 1(e), chapter 95, HTSUSA.

In as much as The Mask and Blackhawk costumes consists of two distinct garments, Note 13, Section XI, of the HTSUSA is applicable and provides:

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

Note 13 of Section XI requires that the textile garments of different 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. According the accessories must also be classified separately.

GRI 3(b) is applicable when goods are, prima facie, classifiable under two or more headings, and have been put up sets for sale. GRI 3(b) states that the goods "shall be classified as if they consisted of the material or component which gives them their essential character.." In the case of the Maid in Heaven costumes, the accessory items are governed by GRI 3(b) because these items are retail packaged as accessories with a single garment wherein each item in the set is classifiable under a separate heading. Pursuant to GRI 3(b), however, the accessory items in the set are classified in accordance with that article 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 applicable subheading for the Mask jacket will be 6211.42.0075, Harmonized Tariff Schedule of the United States(HTS), which provides for "Track suits, ski-suits and swimwear; other garments: Other garments , women's or girls': Of cotton.... Jackets and jacket type-garments excluded from headings 6202". The rate of duty will be 8.5 percent ad valorem.

The applicable subheading for the Mask pants will be 6204.62.4020, Harmonized Tariff Schedule of the United States(HTS), which provides for "Women's or girls' suits, ensembles, suit-type jackets, blazers, dresses, skirts, divided skirts, trousers, bib and brace overalls, breeches and shorts (other than swimwear): Trousers, bib and brace overalls, breeches and shorts: Of cotton: Other: Other: Other.... trousers and breeches: Women's: Other." The rate of duty will be 17.5 percent ad valorem.

The applicable subheading for the Mask shirt dickie will be 6217.10.9010, Harmonized Tariff Schedule of the United States(HTS), which provides for "Other made up clothing accessories; parts of garments or of clothing accessories, other than those of heading 6212: Accessories: Other.... Of cotton". The rate of duty will be 15.3 percent ad valorem.

The applicable subheading for the Mask Necktie will be 6215.90.0015, Harmonized Tariff of the United States(HTS), which provides for "Ties, bow ties and cravats: Of other textile materials.... Of cotton." The rate of duty will be 7.4 percent ad valorem.

The applicable subheading for the Mask vinyl spats will be 3926.20.9050, Harmonized Tariff Schedule of the United States(HTS), which provides for "Articles of apparel and clothing accessories: Other: Other.... Other." The rate of duty will be 5 percent ad valorem.

The applicable subheading for the Blackhawk top will be 6211.42.0081, Harmonized tariff Schedule of the United States(HTS), which provides for "Track suits, ski-suits and swimwear; other garments: Other garments, women's or girls': Of cotton: Other". The rate of duty will be 8.5 percent ad valorem.

The applicable subheading for the Blackhawk pants will be 6204.62.4020, Harmonized Tariff Schedule of the United States(HTS), which provides for "Women's or girls' suits, ensembles, suit-type jackets and blazers, dresses, skirts, divided skirts, trousers, bib and brace overalls, breeches and shorts (other than swimwear): Trousers, bib and brace overalls, breeches and shorts: Of cotton: Other: Other: Other.... trousers and breeches: women's: Other." The rate of duty will be 17.5 percent ad valorem.

The applicable subheading for the Blackhawk wrist covers will be 6217.10.9010, Harmonized Tariff Schedule of the United States(HTS), which provides for "Other made up clothing accessories; parts of garments or of clothing accessories, other than those of heading 6212: Accessories: Other.... Of cotton." The rate of duty will be 15.3 percent ad valorem.

The applicable subheading for the Blackhawk hood will be 9505.90.6020(HTS), which provides for "Festive, carnival or other entertainment articles, including magic tricks and practical jokes; parts and accessories thereof: Other: Other: Hats: Other." This provision is free under the column one rate.

The applicable subheading for the Maid in Heaven costume and accessories, Style #C-18 for girls' will be 6104.43.2020 and for style #A-45 for adults will be 6104.43.2010, Harmonized Tariff Schedule of the United States(HTS), which provides for "Women's or girls' suits, ensembles, suit-type jackets, blazers, dresses, skirts, divided skirts, trousers, bib and brace overalls, breeches and shorts (other than swimwear), Dresses: Of synthetic fibers: Other." The rate of duty will be 16.6 percent ad valorem.

The applicable subheading for Child Gould Robe will be 9505.90.6090(HTS), which provides for "Festive, carnival or other entertainment articles, including magic tricks and practical jokes; parts and accessories thereof: Other: Other: Other." This provision is free under the column one rate.

This merchandise may be eligible for a partial duty exemption in subheading 9802.00.80 which provides for "Articles, except goods of heading 9802.00.90 (textile and apparel goods assembled in Mexico) assembled abroad in whole or in part of fabricated components, the product of United States, which (a) were exported in condition ready for assembly without further fabrication, (b) have not lost their physical identity in such articles by change in form, shape or otherwise, and (c) have nor been advanced in value or improved in condition abroad except by being assembled and except by operations incidental to the assembly process such as cleaning, lubricating and painting" and a duty upon the full value of the imported article, less the cost or value of such products of the United States upon compliance with all applicable regulations.

This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 C.F.R. 177).

A copy of the ruling or the control number indicated above should be provided with the entry documents filed at the time this merchandise is imported. If you have any questions regarding the ruling, contact National Import Specialist Martin Weiss at 212-466-5881.

Sincerely,

Roger J. Silvestri
Director

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See also:

• Tariff No.: 3926.20.90 - Articles of apparel & clothing accessories, of plastic, nesoi
• Tariff No.: 6104.43.20 - Women's or girls' dresses, knitted or crocheted, of synthetic fibers, nesoi
• Tariff No.: 6204.62.40 - Women's or girls' trousers, breeches and shorts, not knitted or crocheted, of cotton, nesoi
• Tariff No.: 6211.42.00 - Women's or girls' track suits or other garments nesoi, not knitted or crocheted, of cotton
• Tariff No.: 6215.90.00 - Ties, bow ties and cravats, not knitted or crocheted, of textile materials nesoi
• Tariff No.: 6217.10.90 - Made up clothing accessories(excl those of heading 6212), containing less than 70% by weight of silk or silk waste, not knitted or crocheted
• Tariff No.: 9505.90.60 - Festive, carnival or other entertainment articles nesoi and parts & accessories thereof nesoi
• Tariff No.: 9802.00.80 - U.S. articles assembled abroad, which have not lost their physical identity or have not advanced in value or improved in condition abroad
• Tariff No.: 9802.00.90 - Textile and apparel goods, assembled in Mexico in which all fabric components were wholly formed and cut in the United States, etc.