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NY B89149




September 26, 1997

CLA-2-62:RR:NC:WA:353 B89149

CATEGORY: CLASSIFICATION

TARIFF NO.: 6211.43.0091, 9505.90.6000

Mr. Ken August
Fun World
80 Voice Road
Carle Place, N.Y. 11514

RE: The tariff classification of three costumes from China

Dear Mr. August:

In your letter dated August 27, 1997, received in our office on September 2, 1997, you requested a classification ruling. Samples of three costumes were submitted for examination.

The fabric portions of costumes are stated to be fabric produced from man-made fibers.

Style 9977 - Caped Vampire consists of an unlined cape with capping, that attaches the collar to the cape body, which extends to a tie closure. The collar, approximately five inches wide, is finished with turned seams and is lightly padded. The raw edge of the cape is finished with visible overlock stitching. Costume accessories include a ruffled dickie with a velcro closure at the rear; a mock vest; sleeves ruffles; plastic medallion on a ribbon and gloves.

Style 9978 - Skull Digger consists of an unlined cape with capping, that attaches the collar to the cape body, which extends to a tie closure. The collar, approximately four inches wide, is finished with turned seams and is lighlty padded. The raw edge of the cape is finished with visible overlock stitching. Costume accessories include a mock vest overprinted with skulls and a elastic tie at the back; gloves and a hat made from plastic coated with textile flocking that features sewn-in synthetic hair.

Style 9979 - Lord Skull consists of an unlined cape with capping, that attaches the collar to the cape body, which extends to a tie closure. The collar, approximately eight inches in diameter, is finished with turned seams and is more substantially padded. The cape has two plastic skulls attached at the front collar which you state in actual production will be just the front portion of the skulls which will be attached to the cape by velcro. The raw edge of the cape is finished with visible overlock stitching. Costume accessories includes a front harness of four plastic coated textile strips affixed onto a center wire ring that is secured to the wearer by fabric ties; a headband and a belt which feature a plastic skull sewn to them and two plastic arm bands.

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 any 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.

GRI 3(b) is applicable when goods are, prima facie, classifiable under two or more headings, and have been put up in sets for retail sale. GRI 3(b) states that the goods "shall be classified as if they consisted of the material component which gives them their essential character." For the three costumes, the accessories are governed by GRI 3(b) because these items are 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 is the set are classified in accordance with that article from which the set derives its essential character. Customs believes that the essential character of each of the three costumes consisting of a single garment with accessories is generally imparted by that garment, which in this case is the cape.

The cape collars of styles 9977 and 9978 are constructed of a relatively small amount of fabric as opposed to the cape itself where exposed overlock stitching on a greater surface area makes the larger portion area of the cape more vulnerable to wear and tear. Thus it is reasonable to conclude that the cape as a whole is not comparable to a normal article of wearing apparel and has not been designed for multiple wear and cleaning.

The cape collar of style 9979 features a highly stylized large substantially padded collar whose edges have been turned and sewn. This strong styling feature and the overall amount of finishing is such that the article is neither flimsy in nature or construction, nor lacking in durability. Thus it is reasonable to conclude that this garment is comparable to articles generally recognized as apparel in that it has been designed for multiple wear and cleaning. As such, it is our view that this garment is an article of fancy dress of Chapter 62 and therefore excluded from heading 9505, HTSUSA. See Chapter 95, HTSUSA, Note 1(e). The applicable subheading for costumes styles 9977 and 9978 will be 9505.90.6000, Harmonized Tariff Schedule of the United States (HTS), which provides for "Festive, carnival or other entertainment articles, including magic tricks and practical joke articles; parts and accessories thereof: Other: Other." The rate of duty will be free.

The applicable subheading for the costume, style 9979, will be 6211.43.0091, 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 man-made fibers: Other." The rate of duty will be 16.7 percent ad valorem. The textile category designation is 659.

Based upon international textile trade agreements products of China are subject to quota and the requirement of a visa.

The designated textile and apparel categories may be subdivided into parts. If so, visa and quota requirements applicable to the subject merchandise may be affected. 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, which is available for inspection at your local Customs office.

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,

Robert B. Swierupski
Director,

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