Classification of certain children's Halloween costumes

HQ 085143 August 25, 1989 CLA-2 CO:R:C:G 085143 CMR CATEGORY: Classification TARIFF NO.: 6211.42.0080 Alan Lebowitz, Esq. Grunfeld, Desiderio, Lebowitz & Silverman 12 East 49th Street New York, New York 10017 RE: Classification of certain children's Halloween costumes Dear Mr. Lebowitz: This ruling is in response to your letter of July 20, 1989, on behalf of Lillian Vernon Corporation, requesting the classification of certain children's Halloween costumes. FACTS: The costumes at issue are similarly constructed. Each consists of a lower portion which covers the body and a headpiece (either a small decorative hat-like headpiece with an elastic chin strap or a detachable decorative hood-like headpiece). The bottom portion of the costumes is composed of two pillow- like parts which are made of a 100 percent cotton woven fabric stuffed with polyfill for shape. The two pillow-like parts are almost completely open at the sides, top and bottom. They are connected by an elasticized textile band at the bottom and by two straps at the shoulders which snap closed. The fronts of the costumes are decorated as either a clock, bumblebee or jack-o- lantern. ISSUE: Are the costumes at issue "apparel"? Are the costumes at issue classifiable in subheading 6211.43.0090, HTSUSA, as other garments, in subheading 9503.70.8000, HTSUSA, as toys, or in subheading 9505.90.6000, HTSUSA, as other festive articles? -2- 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 (1973) 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 . . . 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." -3- 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. 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 -4- 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 costumes at issue, consisting of body and headpiece, are classifiable as sets under GRI 3(b) in the provision for women's or girls' other garments of cotton in subheading 6211.42.0080, HTSUSA, textile category 359, dutiable at 8.6 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 6cc: Area Director, New York Seaport 1cc: CITA 1cc: Legal Reference Section 1cc: Phil Robins