HQ 084186: Classification of a child's devil costume

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                                    HQ 084186

                                  July 31, 1989


      CLA-2 CO:R:C:G  084186  CMR  839165

      CATEGORY: Classification

      TARIFF NO.: 6211.43.0090, 9505.90.6000

      Mr. Scott Fraistat
      Topstone Industries, Inc.
      81 Sand Pit Road
      Danbury, Connecticut  06810

      RE: Classification of a child's devil costume

      Dear Mr. Fraistat:

           This ruling is in response to your letter of April 3, 1989,
      requesting the classification of a child's devil costume.

      FACTS:

           The merchandise at issue is a child's devil costume, item number
      88363, consisting of a body suit with tail, cape and headpiece with
      horns.  All components are made of woven, man-made fibers.

           The merchandise will be purchased in the Philippines and entered
      through the port of New York.

      ISSUE:

           Is the costume classifiable as a toy in Chapter 95, or is it
      considered fancy dress classifiable in Section XI by application of
      exclusion Note 1(e) of Chapter 95?

      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 as:

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











                                       -2-


      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 . . .

      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
      that the essential character of costumes consisting of single











                                       -3-


      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 components of the devil costume are separately classifiable.
      The body suit and cape are classifiable under the provision for
      women's or girls' other garments of man-made fibers, other,
      subheading 6211.43.0090, HTSUSA, textile category 659, dutiable at 17
      percent ad valorem.  The headpiece is classifiable as a festive
      article in subheading 9505.90.6000, HTSUSA, dutiable at 3.1 percent
      ad valorem.  Provided the legal requirements for eligibility for GSP
      treatment have been met, the headpiece, as a product of the
      Philippines, may be imported free of duty.

           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