CLA-2 CO:R:C:G 082173 CMR 828832
Sharretts, Paley,
Carter & Blauvelt, P.C.
Eighty Broad Street
New York, New York 10004
RE: Classification of a gorilla costume under the Harmonized
Tariff Schedule of the United States Annotated (HTSUSA)
Dear Ms. Shira:
This ruling is in response to your letter of February 2, 1988,
on behalf of Ben Cooper, Inc., requesting classification of a gorilla
costume made in Taiwan.
FACTS:
The costume, the Super Gorilla Suit, consists of a man-made
plush fabric suit with four two-inch long velcro closures down the
back opening, separate molded feet and hands made of matching plush
materials and rubber, and a mask with a rubber gorilla face and
matching plush material hood. The costume is sized for individuals
five and a half to six feet tall.
ISSUE:
Is the gorilla costume classified as a toy in Chapter 95, or is
it considered fancy dress classified 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. However,
Note 1(e) excludes articles of "fancy dress, of textiles, of chapter
61 or 62" from classification within Chapter 95.
-2-
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."
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.
-3-
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
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
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61 or 62. While 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.
The gorilla suit at issue is made of six pieces or components.
Composite goods are defined in the Explanatory Notes, which are the
official interpretation of the HTSUS at the international level, as
"not only those [goods] in which the components are attached to each
other to form a practically inseparable whole but also those with
separable components, provided these components are adapted one to
the other and are mutually complementary and that together they form
a whole which would not normally be offered for sale in separate
parts."
We believe the gorilla suit meets the definition of composite
goods. While the gorilla mask might be sold separately, the body
suit, hands and feet are not items generally sold separately. All of
the components of the gorilla suit are adapted to each other, are
mutually complementary and form a gorilla costume that would not
normally be sold separately in parts.
As a composite good, classification of the gorilla suit is
determined by that component which gives the suit its essential
character. The Explanatory Notes address the issue of essential
character under GRI 3(b) as follows:
(VIII) The factor which determines essential character will
vary as between different kinds of goods. It
may, for example, be determined by the nature of the
material or component, its bulk, quantity, weight or
value, or by the role of a constituent material in
relation to the use of the goods.
The body suit is the major component of the gorilla costume. It
is the most costly and has the greatest visible surface. While each
component is necessary to have a complete costume, the body suit, due
to its value and bulk, is the component which we believe gives the
costume its essential character. By application of Note 1(e) to
Chapter 95, the body suit portion of the gorilla suit, as an article
of fancy dress, cannot be classified in Chapter 95. Therefore, the
mask, hands, and feet are classifiable with the body suit in Chapter
61.
HOLDING:
The gorilla suit costume is classifiable in the provision for
other garments, knitted or crocheted, of man-made fibers, other,
other, subheading 6114.30.3070, HTSUSA, textile category 659,
dutiable at 16.1 percent ad valorem.
-5-
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.
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