dissenting.
I respectfully dissent.
This case turns on whether the subject costumes constitute “fancy dress, of textiles, of chapter 61 or 62” within the meaning of Note 1(e) to Chapter 95 of the Harmonized Tariff Schedule of the United States (“HTSUS”). I believe the Court of International Trade was correct in concluding that the costumes are articles of clothing constituting “fancy dress” within the meaning of that provision and that they are therefore excluded from classification in Chapter 95 and are properly classified in Chapter 61.
The two candidates for classification in this case are chapters 61 and 95 of the HTSUS. Chapter 61, which is part of Section XI (“Textiles and Textile Articles”), covers “Articles of Apparel and Clothing Accessories, Knitted or Crocheted.” Note l(t) to Section XI states that the section does not cover “Articles of chapter 95 (for example, toys, games, sports requisites and nets).” Chapter 95 covers “Toys, Games and Sports Equipment; Parts and Accessories Thereof.” Note 1(e) to Chapter 95 states that the chapter does not cover “Sports clothing or fancy dress, of textiles, of chapter 61 or 62.”
Given these directives, an article of “fancy dress” that is “of textiles” and otherwise falls within chapter 61 or 62 as an article of apparel is not classifiable under chapter 95. As the court notes, and as the trial court found, the term “fancy dress” refers to costumes that depart from conventional style and usually represent “a fictional or historical character, an animal, the fancy of the wearer, or a particular occupation.” Webster’s Third New International Dictionary 822 (1968). That definition plainly fits the costumes that are at issue in this case. It is also clear that the costumes are “of textiles.” The only question is whether the costumes are “articles of apparel” that are classifiable in chapter 61 or 62.
On that issue, the court holds that the costumes at issue in this case are flimsy *1361and non-durable and therefore cannot be classified as “wearing apparel” classifiable under chapter 61 or 62. The court defers to the Customs Service’s analysis on this point, finding it persuasive. I do not agree.
The Customs Service seeks to draw a distinction between “flimsy” costumes that a purchaser would expect to use only for a single event or a limited number of events, and “wearing apparel” that is used for decency, comfort, adornment or protection. Customs has ruled that costumes can constitute “wearing apparel” if they have characteristics such as zipper closures and certain styling features that are indicative of substantial and durable garments, but not if they are more crudely made or less durable. See HQ 961447 (July 22, 1998).
Even under the Customs Service’s definition, the costumes that are at issue in this case are “wearing apparel,” in that they can provide decency, comfort, adornment, and protection. I find no basis in the HTSUS for the distinction that Customs seeks to draw between “durable” costumes and “flimsy” ones. There is nothing in the common understanding of the term “wearing apparel” that suggests clothing that must be capable of many wearings in order to be considered “apparel,” nor can any reasonably discernible line be drawn between garments that are well made and those that are crudely made or flimsy; some garments wear like iron, and some hardly seem designed to survive the first trip to the dry cleaner. Moreover, costumes by their nature are typically designed to be worn less frequently, or fewer times, than clothing that is intended for daily use. Nonetheless, the HTSUS clearly contemplates that costumes can constitute wearing apparel, inasmuch as Note 1(e) to chapter 95 refers to fancy dress (i.e., costumes) made of textiles that constitute wearing apparel. If a costume can constitute wearing apparel — and it clearly can in the view of the HTSUS — I see nothing about the costumes at issue in this case that disqualifies them from being considered wearing apparel.
The Court of International Trade made findings that support this conclusion. First, the court examined the costumes at issue in this case and concluded that they were garments “which might be unusual, but would certainly not be indecent or too flimsy for a child to wear in warm weather.” The court further found that the subject costumes
are articles that are meant to adorn the human body at a particular time, either on Halloween or at any other event where the wearer desires to mimic another. They fall well within the norms of apparel as it is viewed in the United States; outer garments which provide! ] at least minimal decency and which send[ ] the world a message about the wearer through their appearance or use.... The fact that such garments may fail to constitute clothing worn by most on a daily basis does not negate their inherent nature as articles of clothing.
In light of those factual findings, I cannot agree that the costumes in this case do not constitute wearing apparel.
Nor is there any suggestion in chapters 61 and 62 of the HTSUS that non-durable clothing is not “apparel.” In fact, subheading 6210.10.50 of the HTSUS explicitly covers “disposable apparel designed for use in hospitals, clinics, laboratories or contaminated areas,” and subheading 6210.10.70 covers “[disposable briefs and panties designed for one-time use.” If those items are “apparel” even though intended for only a single use, then why does *1362the assertedly non-durable character of the costumes at issue in this case exclude them from being characterized as “apparel”? Customs does not explain that anomaly in its position. Disposable hospital gowns are not “durable” and do not feature zipper closures, finished collars, and styling features, yet they plainly constitute “apparel,” as is made clear by their inclusion in chapter 62. The costumes in this case are entitled to the same treatment.
Finally, the Explanatory Notes to the Harmonized Commodity Description and Coding System make clear the distinction between textile costumes and other articles of fancy dress. The pertinent Note explains that heading 9505, in which Customs has classified the costumes at issue in this case, covers “Articles of Fancy dress, e.g., masks, false ears and noses, wigs, false beards and moustaches (not being articles of postiche — heading 67.04), and paper hats. However, the heading excludes fancy dress of textile materials, of Chapter 61 or 62.” The Explanatory Note distinguishes between textile costumes (“fancy dress of textile materials”) and costume accessories (“e.g., masks, false ears and noses, wigs, false beards and mous-taches”). The costumes at issue in this case clearly fall on the textile costume side of that line. There is no suggestion in the Explanatory Note or elsewhere in the HTSUS that costumes made of textiles are normally characterized as “fancy dress of textile materials,” but become akin to “masks, false ears and noses, wigs, false beards and moustaches” if Customs concludes that they are not as durable or well-finished as most imported wearing apparel. Customs’ position in this case is not persuasive and therefore not entitled to deference. I would affirm the judgment of the Court of International Trade.