CLA-2 CO:R:C:G 086913 CMR

6217.10.0030, 9505.90.6000, 6104.43.2020,
6104.44.2020, 6210.10.4025,

Mervyn's
Ms. Dorla Reppas
25001 Industrial Boulevard
Hayward, Cal. 94545

RE: Classification of Halloween costumes

Dear Ms. Reppas:

This ruling is in response to your submission of April 6, 1990, requesting the classification of various children's Halloween costumes.

FACTS:

Seven costumes have been submitted for classification. The vendor is Plenty Ocean of Taiwan.

Ballerina--BA2 consists of a pink lurex knit leotard with a pink tutu attached, a silver tiara (plastic headband covered with lurex material), and a plastic wand with a silver star. The ballerina costume will be available in sizes 4-7 and 8-12.

Bride--B1 consists of a white nylon satin skirt with an elastic waist and two lace ruffles of netting material, a veil of nylon netting attached to a white plastic headband, and a white lace scarf (fabric piece measuring 5" by 60"). The costume is sized one size.

Gypsy--GP1 consists of a nylon acetate black and white skirt with a jagged hemline (not hemmed) and elastic waist, a vest of red nylon acetate with a gold braid trim, a red nylon acetate head scarf with simulated gold coins attached to one side, a red nylon acetate sash, and one simulated gold earring. The costume is sized one size.

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Witch--W1 consists of a polyester knit black dress with a jagged hemline and long sleeves, a black nylon hat with a wire rim, and a belt of red vinyl with a cat face outline hook and loop closure. The costume is sized one size.

Fairy Princess--FP1 consists of a dress with a gold lurex bodice with spaghetti straps and a two layered skirt of gathered white netting with a gold design connected to the bodice with elastic, two hook and loop fasteners on the back of the dress to hold wings, wings of circles of wire covered with nylon netting and hook and loop fasteners in the center in order to attach the wings to the back of the dress, a crown headband covered with gold fabric and a garland of gold, and a wand of clear plastic with a star of plastic on the tip with ribbons hanging from the star. The costume will be available in sizes 4-7 and 8-12.

Devil--7 consists of a polyester knit red dress, a belt of gold vinyl with a hook and loop closure, a stuffed tail of acrylic felt with a loop at one end and a point at the other, a headband of felt with horns stuffed and covered with nylon satin, and a pitchfork of plastic. The costume is sized one size.

Turtle--TU1 consists of an acrylic felt body garment with hook and loop closures at the shoulders, leg openings, a green felt "shell" stuffed with a plastic bag with air in it, and a felt headpiece with plastic eyes and a hook and loop closure under the chin.

ISSUE:

Are the costumes considered fancy dress, excluded from Chapter 95, and classified in Chapters 61 and 62?

LAW AND ANALYSIS:

Customs has issued several rulings on the issue of the classification of costumes. In those rulings we have consistently held that costumes are fancy dress excluded from Chapter 95 and classified as wearing apparel in Chapters 61 and 62. The following analysis is the basis for those rulings.

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 (1973) as:

Costume representing a nation, class, calling, etc., as worn to costume ball or masquerade party. (Page 134)

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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. Therefore, if the costumes at issue are fancy dress, as we believe they are, then they are apparel.

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. -4-

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 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. However, 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

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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 costumes at issue are classified as follows:

Ballerina--BA2 is classified as a set under the provision for the pink lurex knit leotard with the tutu attached. That garment is classified under the provision for other garments, knitted or crocheted, of man-made fibers, other, other, women's or girls', subheading 6114.30.3070, textile category 659, dutiable at 16.1 percent ad valorem.

Bride--B1 is classified as a set under the provision for the white satin skirt. The headpiece and the white scarf fabric are simply accessory items. The skirt is classified in the provision for girls' woven skirts of synthetic fibers in subheading 6204.53.3020, HTSUSA, textile category 642, dutiable at 17 percent ad valorem. If entered separately, the headpiece would fall in subheading 9505.90.6000, HTSUSA, as a festive article (not subject to quota), dutiable at 3.1 percent ad valorem and the white scarf fabric is classified as an other knitted or crocheted fabric, other, of a width not exceeding 30 cm., open- work fabrics, warp knit, in subheading 6002.20.1000, HTSUSA, textile category 229, dutiable at 16 percent ad valorem.

Gypsy--GP1 is not classifiable as a set because there is more than one garment in the costume. The items are therefore separately classified. The nylon acetate black and white skirt is classified as a girls' skirt of synthetic fibers in subheading 6204.53.3020, HTSUSA, textile category 642, dutiable at 17 percent ad valorem. The vest is classified as a girls' other garments of man-made fibers, vests, in subheading 6211.43.0080, HTSUSA, textile category 659, dutiable at 17 percent ad valorem. The red nylon acetate sash is classified in the provision for other made up clothing accessories in subheading 6217.10.0030, HTSUSA, textile category 659, dutiable at 15.5 percent ad valorem. The head scarf and simulated gold earring are classified as toys in subheading 9505.90.6000, HTSUSA, dutiable at 3.1 percent ad valorem.

Witch--W1 is classified as a set under the provision for the polyester knit black dress. The dress is classified as a girls' dress of synthetic fibers in subheading 6104.43.2020, HTSUSA, textile category 636, dutiable at 17 percent ad valorem.

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Fairy Princess--FP1 is classified as a set under the provision for the dress. The dress and the wings form a composite good because they are adapted one to the other and are mutually complementary and would not normally be sold separately. However, the dress, wings, headband and wand form a set, the essential character of which, we believe is imparted by the dress. The essential character of the composite good formed by the dress and wings is also imparted by the dress. The dress is classified according to the portion which imparts its essential character. While the upper portion of a garment would normally determine its classification, in this case, the lower white netting of the skirt provides a significant visual effect and we believe gives the dress its essential character. Therefore, the Fairy Princess costume is classified under the provision for the dress which, depending on the fiber content, is either subheading 6104.43.2020, HTSUSA, textile category 636, dutiable at 17 percent ad valorem if of synthetic fibers or, subheading 6104.44.2020, HTSUSA, textile category 636, dutiable at 17 percent ad valorem if of artificial fibers.

Devil--7 is classified as a set under the provision for the polyester knit dress. The dress is classified as a girls' knit dress of synthetic fibers in subheading 6104.43.2020, HTSUSA, textile category 636, dutiable at 17 percent ad valorem.

Turtle--TU1 is classified as a set under the provision for the body garment. That garment is classified under the provision for garments, made up of fabric of heading 5602, in subheading 6210.10.4025, HTSUSA, textile category 659, dutiable at 17 percent ad valorem.

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.

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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