HQ 085143: Classification of certain children's Halloween costumes

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 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