OT:RR:CTF:CPMM H261881 KSG
Lauren E. Hong
Customs Representative
The Walt Disney Company
101 North Brand Boulevard
Suite 1000
Glendale CA 91203
Irene Tsiavos
Funworld
80 Voice Road
Carle Place NY 11514
RE: Revocation of NY B87119 and modification of NY N006668
Dear Madams:
This ruling is in reference to the revocation of New York Ruling Letter (NY) B87119, dated July 8, 1997, regarding the tariff classification of a “Mickey” mitt which is a reference to the Mickey Mouse character; and the modification of a pair of "cartoon hand" gloves classified in NY N006668, dated February 14, 2007.
In NY B87119, and NY N006668, U.S. Customs & Border Protection (CBP) classified the Mickey mitt and cartoon hand gloves 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 B87119, and NY N006668, and determined that the rulings are in error. Accordingly, for the reasons set forth below, CBP is revoking
NY B87119, and modifying NY N006668.
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, notice proposing to revoke NY B87119 and to modify NY N006668 was published on August 21, 2019, in Volume 53, Number 29, of the Customs Bulletin. No comments were received in response to this Notice.
FACTS:
NY B87119 involves a large, white, acrylic pile mitt which is worn on the hand to create the appearance of the three digit hand of the cartoon character “Mickey Mouse.” It allows for the insertion of the thumb and separate insertion of the fingers.
The cartoon hands classified in NY N006668 are an oversized pair of "cartoon hand" style gloves, 12” wide and 11” in length, with one thumb and three fingers made from 100 percent polyester knit fabric and stuffed with foam. It also allows for the insertion of the thumb and separate insertion of the fingers.
ISSUE:
Whether the mitt and gloves, described above, are properly classified in heading 6116, HTSUS, as gloves or a mitt or in heading 9505, HTSUS, as festive articles.
LAW AND ANALYSIS:
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). 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 2 through 6 may then be applied in order.
GRI 6 provides that for legal purposes, the classification of goods in the subheadings of a heading shall be determined according to the terms of those subheadings and any related subheading notes and, mutatis mutandis, to the above Rules, on the understanding that only subheadings at the same level are comparable. For the purposes of this Rule the relative section and chapter notes also apply, unless the context otherwise requires.
The HTSUS headings under consideration are the following:
6116 Gloves, mitten and mitts, knitted or crocheted:
9505 Festive, carnival or other entertainment articles, including magic tricks and practical joke articles; parts and accessories thereof: Other.
***
Chapter note 1(v), chapter 95, HTSUS, provides that the chapter does not cover "gloves, mittens and mitts (classified according to their constituent materials)." The chapter notes have the same legal force as the text of the headings. See Roche Vitamins, Inc. v. United States, 772 F.3d 728 at 730 (Fed. Cir. 2014).
In Rubies Costume Co. v. United States, 279 F. Supp. 3d 1145 (Ct. Intl Trade 2017), aff'd, No. 2018-1305, 2019 U.S. App. LEXIS 12747 (Fed. Cir. April 29, 2019), the court considered whether a Santa Claus costume was classified as a festive article in heading 9505, HTSUS. White knit 100 percent polyester gloves, which were a part of the costume, were classified in heading 6116, HTSUS. The court cited to the exclusionary language in chapter note 1(u) (now chapter 95 note 1(v)), as the basis for the decision to classify the gloves in heading 6116, HTSUS.
In understanding the language of the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System, constitute the official interpretation of the Harmonized System at the international level. 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 T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
The EN for heading 6116, HTSUS, states that the heading includes ordinary short gloves with separate fingers, mittens covering only part of the fingers, mitts with separation for the thumb only and gauntlet or other long gloves that may cover the forearm or even part of the upper arm.
In Headquarters Ruling Letter (HQ) 957261, dated August 11, 1995, CBP affirmed the classification of a power ranger sound effect glove in subheading 6116.10, HTSUS. The ruling examined the definition of “gloves” and found that the article had a separate sheath for each finger and for the thumb and that the article was a glove. Then, CBP applied chapter note 1(v) and interpreted it to mean that the exclusionary language to chapter 95, HTSUS, operated to specifically exclude the power ranger glove from chapter 95, HTSUS. Accordingly, if the article to be classified is a glove, mitten or mitt, the article is excluded from classification in chapter 95, HTSUS.
Since the articles involved are either gloves or a mitt, classification in chapter 95, HTSUS, is expressly precluded by chapter note 1(v), and the articles would be classified by their constituent material. Both the Mickey mitt and the cartoon hands gloves have a separate enclosed opening for the fingers and for the thumb like the article in HQ 957261.
Both the “Mickey” mitt and cartoon gloves are unlikely to be coated or to have a fourchette. Based on the information provided regarding the materials, they would be classified in subheading 6116.93.88, HTSUS, which provides for “Gloves, mittens and mitts, knitted or crocheted: Other: Of synthetic fibers: Other: Without fourchettes.”
HOLDING:
We are revoking NY B87119, and modifying NY N006668. The Mickey mitt and cartoon gloves are classified in subheading 6116.93.88, HTSUS. The column one, general rate of duty is 18.6%.
Duty rates are provided for your convenience and subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided for at www.usitc.gov.
EFFECT ON OTHER RULINGS:
NY B87119 is revoked and NY N006668 is modified in accordance with the above analysis.
In accordance with 19 U.S.C. 1625(c), this ruling will become effective 60 days after publication in the CUSTOMS BULLETIN.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division