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NY D85701




December 30, 1998

CLA-2-62:RR:NC:3:353 D85701

CATEGORY: CLASSIFICATION

TARIFF NO.: 6211.33.0015; 6104.43.2020; 6114.30.1010; 6114.30.3060

Ms. Jinky A. Spires
Disguise Inc.
9040 Activity Rd.
Suite D
San Diego, CA 92126

RE: The tariff classification of Precocious Pirate, Lucinda, Bride of Darkness and Classic Vampire Costume from Mexico.

Dear Ms. Spires:

In your letter dated December 4, 1998, you requested a classification ruling. Three samples were submitted for examination with your request.

The submitted samples are, style number 2131, Precocious Pirate, size 2-4 boys costume set consisting of a woven polyester fabric jumpsuit, belt and buckle, striped socks, pirate hat with a feather, and shoes buckles. Style number 145, Lucinda, Bride of Darkness girls costume set consists of a knit man made fiber fabric (sequined lame print) gown with tulle trim and a sequined devil horn headpiece with attached veil. Style number 1133, Classic Vampire boys costume, consists of a knit man made fiber fabric shirt and vest combination with an attached medallion, and a knit polyester cape with a collar and self tie.

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 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 pastiche- 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 9505.90.6000, 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 three submitted sample costumes are comparable in construction and durability. They are well made with finished seams, some with piping, and can be used multiple times. The amount of finishing is such that the articles are neither flimsy in nature or construction, nor lacking in durability.

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." In the case of Precocious Pirate, style number 2131, the belt, buckle, socks, pirate hat and shoes buckles, and for Lucinda, Bride of Darkness, style number 145, the devil horn headpiece 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 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 a single garment with accessories is generally imparted by that garment, which in this case is the jumpsuit for the Precocious Pirate Costume and the gown for the Lucinda, Bride of Darkness Costume.

In as much as the Classic Vampire Costume, style number 1133 consists of two distinct garments, (the top and the cape) 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.

The applicable subheading for the Precocious Pirate Costume, style number 2131 will be 6211.33.0015, Harmonized Tariff Schedule of the United States (HTS), which provides for "Track suits, ski-suits and swimwear; other garments: Other garments, men's or boys': Of man-made fibers, Coveralls, jumpsuits and similar apparel: Other: Boys': Sizes 2-7." The general rate of duty for 1998 will be 16.6 percent and for 1999, 16.5 percent ad valorem. The textile category designation is 237.

The applicable subheading for the Lucinda, Bride of Darkness Costume, style 145 will be 6104.43.2020, 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), knitted or crocheted: Dresses: Of synthetic fibers: Other, Girls'." The general rate of duty for 1998 will be 16.6 percent and for 1999, 16.5 percent ad valorem. The textile category designation is 636.

The applicable subheading for the Classic Vampire top will be 6114.30.1010, Harmonized Tariff Schedule of the United States (HTS), which provides for "Other garments, knitted or crocheted: Of man-made fibers: Tops, Men's or boys'." The general rate of duty for 1998 will be 29.3 percent and for 1999, 29.1 percent ad valorem. The textile category designation is 638.

The applicable subheading for the Classic Vampire cape will be 6114.30.3060, Harmonized Tariff Schedule of the United States (HTS), which provides for "Other garments, knitted or crocheted: Of man-made fibers: Other, Other: Men's or boys'." The general rate of duty for 1998 will be 15.6 percent and for 1999 15.5 percent ad valorem. The textile category designation is 659.

Based upon international textile trade agreements products of Mexico are not subject to quota and the requirement of a visa.

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 Kenneth Reidlinger at 212-466-5881.

Sincerely,

Robert B. Swierupski

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