OT:RR:CTF:FTM H249079 PJG
Mr. Robert A. Pontier, CHB
Air Cargo Sales, Inc.
429 Moon Clinton Road
Coraopolis, Pennsylvania 15108
RE: Modification of NY N096096, NY N025677, NY N014873, NY N012283, NY N006635, NY M83717, NY M85722, NY M80474, NY L87172, NY L81757, NY K84618, NY J86180, and NY J84426; Classification of Plastic Leg Coverings
Dear Mr. Pontier:
This is in reference to New York Ruling Letter (“NY”) NY N014873, dated August 13, 2007, issued to you concerning the tariff classification of the Santa Claus costume (item 959638) under the Harmonized Tariff Schedule of the United States (“HTSUS”). The costume consists of a top/shirt, pants, hat, beard, wig, leg coverings (referred to as “boot covers”), belt and gloves. This decision concerns only the leg coverings, which are made of cellular plastic material.
In NY N014873, U.S. Customs and Border Protection (“CBP”) classified the leg coverings in subheading 9505.90.6000, HTSUSA, 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 N014873 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 N014873 and eleven other rulings with substantially similar plastic leg coverings: NY N096096, dated March 23, 2010, NY N025677, dated May 2, 2008, NY N006635, dated February 28, 2007, NY M83717, dated October 11, 2006, NY M85722, dated August 14, 2006, NY M80474, dated March 17, 2006, NY L87172, dated September 12, 2005, NY L81757, dated January 26, 2005, NY K84618, dated April 14, 2004, NY J86180, dated June 24, 2003, and NY J84426, dated June 2, 2003.
We have also reviewed the original ruling request for NY N012283, dated June 21, 2007, and determined that the leg coverings, therein referred to as “boot covers,” were not part of the Buccaneer Beauty adult costume (style 521). Therefore, we are modifying that ruling to remove the reference to and classification of the leg coverings.
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 NY N014873, CBP classified a well-made Santa Claus costume (item 959638), which consists of a top/shirt, pants, hat, beard, wig, leg coverings (referred to as “boot covers”), belt and gloves. This decision concerns only the leg coverings, which are made of cellular plastic material. The cellular plastic leg coverings were classified in subheading 9505.90.6000, HTSUSA, which provides for “Festive, carnival or other entertainment articles, including magic tricks and practical joke articles; parts and accessories thereof: Other: Other.”
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:
* * *
6406.90.30 Of rubber or plastics
* * *
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 leg coverings included with the Santa Claus costume (item 959638) 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. 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 6406.90.30, 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 rubber or plastics.”
In NY N014873, 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 Santa Claus costume (item 959638) leg coverings are classified under heading 6406, HTSUS, and specifically, in subheading 6406.90.30, 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 rubber or plastics.” The 2021 column one, general rate of duty is 5.3 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 N096096, dated March 23, 2010, is MODIFIED with regard to the tariff classification of the Adult Santa Suit (style 4291) “boot tops.”
NY N025677, dated May 2, 2008, is MODIFIED with regard to the tariff classification of the “boot covers” for the child’s unisex Santa Claus costume (Item # CL 182) and the “boot covers” for the adult unisex Santa Claus costume (item # CL 181).
NY N014873, dated August 13, 2007, is MODIFIED with regard to the tariff classification of the Santa Claus (item 959638) “boot covers.”
NY N012283, dated June 21, 2007, is MODIFIED to remove the reference to and tariff classification of the Buccaneer Beauty Adult Costume (style 521) “boot covers.”
NY N006635, dated February 28, 2007, is MODIFIED with regard to the tariff classification of the Midnight Carnival Deluxe Leo the Lion Tamer Costume (style 5148050-051) “boot covers.”
NY M83717, dated October 11, 2006, is MODIFIED with regard to the tariff classification of the Deluxe Knight costume (style 350476) “boot covers.”
NY M85722, dated August 14, 2006, is MODIFIED with regard to the tariff classification of the Deluxe Santa Suit Set (style 300755) “boot covers.”
NY M80474, dated March 17, 2006, is MODIFIED with regard to the tariff classification of the Santa Claus Suit “boot covers.”
NY L87172, dated September 12, 2005, is MODIFIED with regard to the tariff classification of the Santa Claus Suit Plus (style CA-0001) “boot covers.”
NY L81757, dated January 26, 2005, is MODIFIED with regard to the tariff classification of the Royal King Costume (M-0800-00) “boot covers.”
NY K84618, dated April 14, 2004, is MODIFIED with regard to the tariff classification of the Santa Claus Costume (styles 7500 and 7510) “boot covers” or “boot tops.”
NY J86180, dated June 24, 2003, is MODIFIED with regard to the tariff classification of the Ranger Boot Covers (style IM962) “boot covers.”
NY J84426, dated June 2, 2003, is MODIFIED with regard to the tariff classification of the Santa Costume (style 4315-0040) “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