OT:RR:CTF:FTM H239480 PJG
Ms. Maria Johnson
Disguise, Inc.
12120 Kear Place
Poway, CA 92064
RE: Revocation of NY M82946; Classification of Three “Power Ranger” Costume Accessory Sets
Dear Ms. Johnson:
This is in reference to New York Ruling Letter (“NY”) M82946, dated May 3, 2006, issued to you concerning the tariff classification of three “Power Ranger” Costume Accessory Sets under the Harmonized Tariff Schedule of the United States (“HTSUS”). Each of the three accessory sets consist of a pair of knit gloves and a pair of leg coverings, referred to as “boot covers” in NY M82946.
In NY M82946, 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 M82946 and find it to be in error regarding the tariff classification of the leg coverings and the resulting classification of the three “Power Ranger” Costume Accessory Sets. Accordingly, for the reasons set forth below, NY M82946 is revoked.
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 August 4, 2021, in Volume 55, Number 30, of the Customs Bulletin. We received one comment in support of the notice that additionally suggested adding General Rules of Interpretation (“GRI”) 6 to the Holding section of the document. We agree with this suggestion.
FACTS:
In NY M82946, the merchandise is described as follows:
Style 14747, Pink Ranger Accessory Set, style 14748, Red Ranger Accessory Set, and style 14749, Green Ranger Accessory Set, consists of three sets that contain a pair of polyester knit gloves and a pair of polyester knit boot covers that accessorize “Power Ranger” costumes. Each pair of gloves and [each] pair of boot covers are identical except for color and are designed for a child.
The leg coverings are designed to resemble boots worn by the “Power Ranger” characters when worn over the consumer’s shoes.
In NY M82946, CBP classified the knit gloves in heading 6116, HTSUS, which provides for “Gloves, mittens and mitts, knitted or crocheted” and classified the leg coverings in heading 9505, HTSUS, which provides for “Festive, carnival or other entertainment articles, including magic tricks and practical joke articles; parts and accessories thereof.” CBP determined under GRI 3(c) that the “Power Ranger” Accessory Sets are classified under heading 9505, HTSUS. The tariff classification of knit gloves is not in dispute. This ruling only addresses the tariff classification of the knit shoe covers and the complete “Power Ranger” Accessory Sets.
ISSUES:
Whether the leg coverings are classified in heading 6406, HTSUS, as gaiters, leggings and similar articles, or under heading 9505, HTSUS, as festive articles.
Whether the “Power Ranger” Accessory Sets are classified in heading 6406, HTSUS, or 9505, HTSUS.
LAW AND ANALYSIS:
Classification under the Harmonized Tariff Schedule of the United States (“HTSUS”) is made in accordance with the 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 GRI may then be applied.
The 2021 HTSUS provisions under consideration are as follows:
6116 Gloves, mittens and mitts, knitted or crocheted:
* * *
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
GRI 3 provides as follows:
When, by application of rule 2(b) or for any other reason, goods are, prima facie, classifiable under two or more headings, classification shall be effected as follows:
The heading which provides the most specific description shall be preferred to headings providing a more general description. However, when two or more headings each refer to part only of the materials or substances contained in mixed or composite goods or to part only of the items in a set put up for retail sale, those headings are to be regarded as equally specific in relation to those goods, even if one of them gives a more complete or precise description of the goods.
Mixtures, composite goods consisting of different materials or made up of different components, and goods put up in sets for retail sale, which cannot be classified by reference to 3(a), shall be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable.
When goods cannot be classified by reference to 3(a) or 3(b), they shall be classified under the heading which occurs last in numerical order among those which equally merit consideration.
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 GRI 3(b) states, in pertinent part:
(VI) This second method relates only to :
(i) Mixtures.
(ii) Composite goods consisting of different materials.
(iii) Composite goods consisting of different components.
(iv) Goods put up in sets for retail sales.
It applies only if Rule 3 (a) fails.
(VII) In all these cases the goods are to be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable.
(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.
* * *
(X) For the purposes of this Rule, the term “goods put up in sets for retail sale” shall be taken to mean goods which :
(a) consist of at least two different articles which are, prima facie, classifiable in different headings. Therefore, for example, six fondue forks cannot be regarded as a set within the meaning of this Rule;
(b) consist of products or articles put up together to meet a particular need or carry out a specific activity; and
(c) are put up in a manner suitable for sale directly to end users without repacking (e.g., in boxes or cases or on boards).
“Retail sale” does not include sales of products which are intended to be re-sold after further manufacture, preparation, repacking or incorporation with or into other goods.
The term “goods put up in sets for retail sale” therefore only covers sets consisting of goods which are intended to be sold to the end user where the individual goods are intended to be used together.
* * *
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 in the “Power Ranger” Costume Accessory Sets 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. Finally, consistent with EN 64.06(II), the subject leg coverings do not appear to 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 M82946, 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.
Next, we turn to the classification of the subject costume accessory sets, which consists of knit gloves and the leg coverings. In NY M82946, CBP classified the knit gloves in heading 6116, HTSUS, and that classification is not at issue in this ruling. As determined above, the leg coverings are classified in heading 6406, HTSUS. Applying the definition of the phrase “goods put up in sets for retail sale” provided in the EN(X) to GRI 3(b), the three “Power Ranger” Costume Accessory Sets meet the first requirement because the products each consist of articles that are prima facie classifiable in different headings of the HTSUS, specifically, the knit gloves and the leg coverings. In addition, the two products meet the second requirement because the articles are put up together to be used to carry out the specific activity of making the costume wearer look like a “Power Ranger.” Finally, the two products are put up in a manner suitable for sale because they are packaged together for retail sale. Therefore, the three “Power Ranger” Costume Accessory Sets are “goods put up in sets for retail sale,” which must be classified using GRI 3(b).
GRI 3(b) states, in relevant part, that retail sets shall be classified as if they consisted of the component which gives them their essential character. The EN to GRI 3(b) (VIII) lists factors to help determine the essential character of such goods: “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 U.S. Court of International Trade (“CIT”) has indicated that the factors listed in the EN to GRI 3(b) (VIII) are “instructive” but “not exhaustive” and has indicated that the goods must be “‘reviewed as a whole.’” The Home Depot, U.S.A., Inc. v. United States, 30 Ct. Int’l Trade 445, 459-460 (2006) (citing A.N. Deringer, Inc. v. United States, 66 Cust. Ct. 378, 384 (1971) (citation omitted)). With regard to the good which imparts the essential character, the court has stated that it is “‘that which is indispensable to the structure, core or condition of the article, i.e., what it is.’” Id. at 460 (citing A.N. Deringer, Inc., 66 Cust. Ct. at 383).
Applying the aforementioned factors, the leg coverings and the gloves are both comprised of polyester fabric. There are two leg coverings and there are two gloves. We do not know whether one of the goods consists of more material or is more valuable. However, it is evident that the role of these goods is essentially equivalent, i.e., creating the appearance of a “Power Ranger” character for the wearer. Considering the merchandise as a whole, neither of these goods imparts the essential character to the set.
In accordance with GRI 3(c), “[w]hen goods cannot be classified by reference to 3(a) or 3(b), they shall be classified under the heading which occurs last in numerical order among those which equally merit consideration.” Therefore, while considering headings 6116, HTSUS, and 6406, HTSUS, we conclude that the three “Power Ranger” Costume Accessory Sets are classified under heading 6406, HTSUS, because it occurs last in numerical order.
HOLDING:
By application of GRI 3(c) and 6, the “Power Ranger” Costume Accessory Sets 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 M82946, dated May 3, 2006, is REVOKED.
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