OT:RR:CTF:FTM H239479 PJG
Ms. Paulina Dong
Seasonal Visions International Inc.
1368 Park Avenue
Emeryville, CA 94608
RE: Modification of NY N196588, NY N152983, NY N141478, NY N141467, NY N104375, NY N045816, NY N043382, NY N041398, NY N005706, NY M84821, NY M81135, NY L85036, NY L82557, NY E82340, NY E80263 and NY B86150; Classification of Textile Leg Coverings
Dear Ms. Dong:
This is in reference to New York Ruling Letter (“NY”) N196588, dated January 5, 2012, issued to you concerning the tariff classification of three different adult costumes under the Harmonized Tariff Schedule of the United States (“HTSUS”). Specifically, NY N196588 classified the following costumes: Adult Pink Ninja Costume (item numbers: 5147316, 5147317, and 5147318); Adult Classic Witch Costume (item numbers: 5147322, 5147323, and 5147324); and Adult Viking Costume (item numbers: 5147319, 5147320, 5147321, 5147193, 5147194 and 5147195). This decision concerns only the Adult Viking Costume, and in particular, the polyester leg coverings, which are referred to as “boot covers,” designed to resemble boots when worn over the consumer’s shoes.
In NY N196588, U.S. Customs and Border Protection (“CBP”) classified the leg coverings in subheading 9505.90.60, HTSUS, which provides for “Festive, carnival or other entertainment articles, including magic tricks and practical joke articles; parts and accessories thereof: Other: Other.” We have reviewed NY N196588 and find it to be in error regarding the tariff classification of the leg coverings. For the reasons set forth below, we hereby modify NY N196588 and fifteen other rulings with substantially similar textile leg coverings: NY N152983, dated April 4, 2011, NY N141478, dated February 2, 2011, NY N141467, dated February 2, 2011, NY N104375, dated June 3, 2010, NY N045816, dated December 15, 2008, NY N043382, dated December 2, 2008, NY N041398, dated November 5, 2008, NY N005706, dated February 9, 2007, NY M84821, dated July 31, 2006, NY M81135, dated March 27, 2006, NY L85036, dated June 17, 2005, NY L82557, dated March 11, 2005, NY E82340, dated June 3, 1999, NY E80263, dated May 5, 1999, and NY B86150, dated August 8, 1997.
Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. § 1625(c)(1)), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act, Pub. L. No. 103-182, 107 Stat. 2057, 2186 (1993), notice of the proposed action was published on June 30, 2021, in Volume 55, Number 25, of the Customs Bulletin. No comments were received in response to this notice.
FACTS:
In your original request, dated December 12, 2011, you requested a tariff classification ruling for a Ninja costume, a Classic Witch costume, and a Viking costume. You included pictures of the Viking costume with your request and indicated that the costume is 100 percent knit polyester.
In NY N196588, the textile leg coverings are described as follows: “[t]he boot covers have a faux fur cuff and elastic attached to the bottom for securing around the shoe.” In the picture of the Viking Costume, the leg coverings are secured under the female model’s footwear with a strap. The leg coverings cover part of the boots and extend to just below the model’s knees, giving the appearance that she is wearing tall boots with fur cuffs.
ISSUE:
Whether the leg coverings are classified as gaiters, leggings and similar articles under heading 6406, HTSUS, or as festive articles under heading 9505, HTSUS.
LAW AND ANALYSIS:
Classification under the Harmonized Tariff Schedule of the United States (“HTSUS”) is made in accordance with the General Rules of Interpretation (“GRI”). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative Section or Chapter Notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs may then be applied.
The 2021 HTSUS provisions under consideration are as follows:
6406 Parts of footwear (including uppers whether or not attached to soles other than outer soles); removable insoles, heel cushions and similar articles; gaiters, leggings and similar articles, and parts thereof:
* * *
6406.90 Other:
* * *
Of other materials:
6406.90.15 Of textile materials
* * *
9505 Festive, carnival or other entertainment articles, including magic tricks and practical joke articles; parts and accessories thereof:
* * *
9505.90 Other:
* * *
9505.90.60 Other
The Harmonized Commodity Description and Coding System Explanatory Notes
(“ENs”) constitute the “official interpretation of the Harmonized System” at the international level. See 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989). While neither legally binding nor dispositive, the ENs “provide a commentary on the scope of each heading” of the HTSUS and are “generally indicative of [the] proper interpretation” of these headings. See id.
The EN to 64.06(II) provides as follows:
(II) GAITERS, LEGGINGS, AND SIMILAR ARTICLES, AND PARTS THEREOF
These articles are designed to cover the whole or part of the leg and in some cases part of the foot (e.g., the ankle and instep). They differ from socks and stockings, however, in that they do not cover the entire foot. They may be made of any material (leather, canvas, felt, knitted or crocheted fabrics, etc.) except asbestos. They include gaiters, leggings, spats, puttees, “mountain stockings” without feet, leg warmers and similar articles. Certain of these articles may have a retaining strap or elastic band which fits under the arch of the foot. The heading also covers identifiable parts of the above articles.
The EN to 95.05(A)(3) provides as follows:
This heading covers:
(A) Festive, carnival or other entertainment articles, which in view of their intended use are generally made of non durable material. They include:
* * *
(3) 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.
Heading 6406, HTSUS, provides for gaiters and leggings. The terms “gaiters” and “leggings” are not defined in the HTSUS. Headquarters Ruling Letter (“HQ”) 088454, dated October 11, 1991, defines a gaiter as “1. A leather or heavy cloth covering for the legs extending from the instep to the ankle or knee. 2. An ankle-high shoe with elastic sides. 3. An overshoe with a cloth top.” Id. (citing The American Heritage Dictionary, (2nd College Ed. 1982)). HQ 088454 provides two definitions for “legging”: 1) “[a] leg covering of material such as canvas or leather” and 2) a “[c]overing for leg and ankle extending to knee or sometimes secured by stirrup strap under arch of foot. Worn in 19th c. by armed services and by civilian men. See PUTTEE and GAITER. Worn by women in suede, patent, and fabric in late 1960s.” Id. (citing The American Heritage Dictionary, (2nd College Ed. 1982) and Fairchild’s Dictionary of Fashion, (2nd Ed. 1988)). See also HQ 089582, dated November 6, 1991 and NY L81551, dated January 4, 2005.
In addition to gaiters and leggings, heading 6406, HTSUS, provides for “similar articles.” To “determine the scope of [a] general . . . phrase”, the United States Court of International Trade has used the rule of ejusdem generis. See A.D. Sutton & Sons v. United States, 32 C.I.T. 804, 808 (Ct. Int’l Trade 2008) (citing Aves. in Leather, Inc. v. United States, 178 F.3d 1241, 1244 (Fed. Cir. 1999)). Under the rule of ejusdem generis, “‘the general word or phrase is held to refer to things of the same kind as those specified.’” Id. (citing Sports Graphics, Inc. v. United States, 24 F.3d 1390, 1392 (Fed. Cir. 1994). Therefore, “to fall within the scope of the general term, the imported good ‘must possess the same essential characteristics of purposes that unite the listed examples preceding the general term or phrase.’” Id. (citing Aves. in Leather, Inc., 178 F.3d at 1244).
Applying the rule of ejusdem generis, we note that the definitions of gaiters and leggings provided in HQ 088454 indicate that the articles are both leg coverings. Similarly, EN 64.06(II) describes gaiters, leggings and similar articles as “designed to cover the whole or part of the leg and in some cases part of the foot….Certain of these articles may have a retaining strap or elastic band which fits under the arch of the foot.” The EN further states that these articles are different from socks because they do not cover the entire foot.
We find that the Viking leg coverings share the same characteristics as leggings and gaiters of heading 6406, HTSUS. The subject leg coverings provide leg coverage like leggings and gaiters, which provide leg coverage extending to the ankle or to the knee. Like some leggings that are secured to the foot with a strap, these gaiters are secured to the shoe with a strap. Finally, consistent with EN 64.06(II), the subject leg coverings do not cover the entire foot. Accordingly, the subject polyester leg coverings are classifiable under heading 6406, HTSUS, as articles similar to leggings and gaiters, and are specifically classified in subheading 6406.90.15, HTSUS, which provides for “Parts of footwear (including uppers whether or not attached to soles other than outer soles); removable insoles, heel cushions and similar articles; gaiters, leggings and similar articles, and parts thereof: Other: Of other materials: Of textile materials.”
In NY N196588, CBP classified the leg coverings in heading 9505, HTSUS. Heading 9505, HTSUS, provides, in relevant part, for festive articles and “parts and accessories” of festive articles. EN 95.05(A)(3) states that the heading covers costume accessories such as masks, false ears, noses, wigs, false beards, mustaches and paper hats. See Rubie’s Costume Co. v. United States, 337 F.3d 1350, 1359 (Fed. Cir. 2003) (stating that the Explanatory Notes do not narrow the scope of heading 9505, HTSUS, to only accessories to costumes). CBP has classified similar costume accessories under heading 9505, HTSUS. See, e.g., NY N245614, dated August 29, 2013 (stretchable sleeves covered in fake tattoos are classifiable in heading 9505, HTSUS) and NY N162276 (butterfly wings and wand are classifiable in heading 9505, HTSUS). Similar to the articles described in the exemplars provided in EN 95.05(A)(3) and the cited rulings, the subject merchandise are costume accessories.
When goods are prima facie classifiable under two or more headings, we must proceed to GRI 3. According to GRI 3(a), “[t]he heading which provides the most specific description shall be preferred to headings providing a more general description.” In Russ Berrie & Co. v. United States, 381 F.3d 1334 (Fed. Cir. 2004), the U.S. Court of Appeals for the Federal Circuit (“CAFC”) determined that Christmas and Halloween-themed lapel pins and earrings were prima facie classifiable as both imitation jewelry of heading 7117, HTSUS, and as festive articles of heading 9505, HTSUS. Applying GRI 3(a), the CAFC reasoned that:
We have recognized that festive articles include such disparate items as ‘placemats, table napkins, table runners, and woven rugs’ depicting ‘Christmas trees, Halloween jack-o-lanterns, [and Easter] bunnies,’ (citation omitted) ‘cast iron stocking hangers[;] … Christmas water globes; … [and] Easter water globes,” (citation omitted) and jack-o-lantern mugs and pitchers (citation omitted).
Because heading 9505 covers a far broader range of items than heading 7117, the latter is more specific than the former. It is also more specific because it describes the item by name (‘imitation jewelry’) rather than by class (‘festive articles’). It therefore follows that the imported merchandise is classifiable under heading 7117 rather than under heading 9505.
Id. at 1338.
In the instant case, the “gaiters, leggings and similar articles” heading is more specific than the “festive articles” heading because “it covers a narrower set of items.” See id. The relevant portion of heading 6406, HTSUS, pertains to leg coverings, whereas the relevant portion of heading 9505, HTSUS, specifically “‘festive articles’… need only to be closely associated with and used or displayed during a festive occasion.” Id. Accordingly, heading 6406, HTSUS, is more specific than heading 9505, HTSUS, and by application of GRI 3(a), the subject leg coverings are properly classified under heading 6406, HTSUS, and specifically in subheading 6406.90.15, HTSUS, which provides for “Parts of footwear (including uppers whether or not attached to soles other than outer soles); removable insoles, heel cushions and similar articles; gaiters, leggings and similar articles, and parts thereof: Other: Of other materials: Of textile materials.”
HOLDING:
By application of GRI 3(a), the Adult Viking Costume polyester leg coverings are classified under heading 6406, HTSUS, and specifically, in subheading 6406.90.15, HTSUS, which provides for “Parts of footwear (including uppers whether or not attached to soles other than outer soles); removable insoles, heel cushions and similar articles; gaiters, leggings and similar articles, and parts thereof: Other: Of other materials: Of textile materials.” The 2021 column one, general rate of duty is 14.9 percent ad valorem.
Duty rates are provided for convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the internet at www.usitc.gov/tata/hts/.
EFFECT ON OTHER RULINGS:
NY N196588, dated January 5, 2012, is MODIFIED with regard to the tariff classification of the Adult Viking Costume (item numbers: 5147319, 5147320, 5147321, 5147193, 5147194 and 5147195) “boot covers.”
NY N152983, dated April 4, 2011, is MODIFIED with regard to the tariff classification of the Pulp Vintage Cowgirl costume “boot covers.”
NY N141478, dated February 2, 2011, is MODIFIED with regard to the tariff classification of the “boot covers” for the Pirate (style M-3309-00) and Royal King (style M-3321-00) costumes.
NY N141467, dated February 2, 2011, is MODIFIED with regard to the tariff classification of the Pirate costume (style B-2012-00) “boot covers.”
NY N104375, dated June 3, 2010, is MODIFIED with regard to the tariff classification of the Kid Kiss Destroyer Costume (style HWN10-0008) “boot tops” or “boot covers.”
NY N045816, dated December 15, 2008, is MODIFIED with regard to the tariff classification of the French Kiss Showgirl Costume (item numbers: 6869024 Size XS; 6869025 Size S; 6869026 Size M; 6899027 Size L) “boot covers” or “spats.”
NY N043382, dated December 2, 2008, is MODIFIED with regard to the tariff classification of the Deluxe Pirate Costume (style M-1522-00) “boot covers.”
NY N041398, dated November 5, 2008, is MODIFIED with regard to the tariff classification of the Born to be Wild (style 0113) “boot covers.”
NY N005706, dated February 9, 2007, is MODIFIED with regard to the tariff classification of the Deluxe Pirate Captain (style M-1154-00) “boot covers.”
NY M84821, dated July 31, 2006, is MODIFIED with regard to the tariff classification of the Boney Pirate Costume (style numbers: 48691;10612750, 10612751, 10612752, 400009466737, 400009466812, 40000466997 and 400009467079) “boot covers.”
NY M81135, dated March 27, 2006, is MODIFIED with regard to the tariff classification of the Sexy Captain Black Heart Costume (style 5130) “boot covers” or “boot tops.”
NY L85036, dated June 17, 2005, is MODIFIED with regard to the tariff classification of the “boot covers” for the Boney Pirate Costume – DD (style 410014) and the Deluxe Boney Pirate Costume – DS (style 410013).
NY L82557, dated March 11, 2005, is MODIFIED with regard to the tariff classification of the Moonlight Vixen (style 05095) “leg covers” or “boot covers.”
NY E82340, dated June 3, 1999, is MODIFIED with regard to the tariff classification of the Pirate costume (style # 9942) “boot tops.”
NY E80263, dated May 5, 1999, is MODIFIED with regard to the tariff classification of the Pirate King Outfit (#77054) “boot tops.”
NY B86150, dated August 8, 1997, is MODIFIED with regard to the tariff classification of the style HK989000 “boot covers.”
In accordance with 19 U.S.C. § 1625(c), this ruling will become effective 60 days after its publication in the Customs Bulletin.
Sincerely,
For Craig T. Clark, Director
Commercial and Trade Facilitation Division