OT:RR:CTF:FTM H317808 PJG
Ms. Helen Cooper
Original Concepts
701 E. 3rd Street, Suite 130
Los Angeles, CA 90013
RE: Modification of NY N295237, NY N092979, NY N092981 and NY N061590; Classification of Textile Leg Coverings
Dear Ms. Cooper:
This is in reference to New York Ruling Letter (“NY”) N061590, dated June 16, 2009, issued to you concerning the tariff classification of the Bad Costume (style 36230) under the Harmonized Tariff Schedule of the United States (“HTSUS”). Specifically, the Bad Costume (style 36230) consists of a jacket, trousers, gloves, two belts, a bracelet, and leg coverings, which are referred to as “shoe covers.” This decision concerns only the leg coverings.
In NY N061590, U.S. Customs and Border Protection (“CBP”) classified the leg coverings in subheading 6307.90.98, HTSUS, which provides for “Other made up articles, including dress patterns: Other: Other: Other.” We have reviewed NY N061590 and find it to be in error with regard to the tariff classification of the leg coverings. For the reasons set forth below, we hereby modify NY N061590 and three other rulings with substantially similar textile leg coverings: NY N295237, dated April 13, 2018, NY N092979, dated March 2, 2010, and NY N092981, dated March 2, 2010.
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 N061590, the Bad Costume (style 36230) leg coverings are constructed of knit 95 percent cotton and 5 percent lycra fabric. The leg coverings also “have elastic at the back and numerous straps with metal grommets.” In NY N061590, U.S. Customs and Border Protection (“CBP”) classified the textile leg coverings in subheading 6307.90.98, HTSUS, which provides for “Other made up articles, including dress patterns: Other: Other: Other.”
In NY N295237, the “Loyal Knit” costume (Item CB17006) leg coverings were “composed of 100% polyester knit fabric” and “tubular shape[d].” CBP classified the textile leg coverings in in subheading 6117.80.95, which provides for “Other made up clothing accessories, knitted or crocheted; knitted or crocheted parts of garments or of clothing accessories: Other accessories: Other: Other.”
In NY N092979, the Centurion Costume (Turquoise) (Item # 10530) leg coverings were “constructed of woven 90 percent polyester and 10 percent metallic fabric laminated to felt.” They were described as “cylindrical shaped covers represent[ing] armor.” In NY N092979, CBP classified the textile leg coverings in subheading 6217.10.95, HTSUS, which provides for “Other made up clothing accessories; parts of garments or of clothing accessories, other than those of heading 6212: Accessories: Other: Other.”
In NY N092981, the Centurion Costume (Eggplant) (Item # 10540) leg coverings were “constructed of woven 90 percent polyester and 10 percent metallic fabric laminated to felt.” They were described as “cylindrical shaped covers represent[ing] armor.” In NY N092979, CBP classified the textile leg coverings in subheading 6217.10.95, HTSUS, which provides for “Other made up clothing accessories; parts of garments or of clothing accessories, other than those of heading 6212: Accessories: Other: Other.”
ISSUE:
Whether the textile leg coverings are classified as gaiters, leggings and similar articles under heading 6406, HTSUS, as other made up clothing accessories, knitted or crocheted under heading 6117, HTSUS, as other made up clothing accessories under heading 6217, HTSUS, or as other made up articles under heading 6307, 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:
6117 Other made up clothing accessories, knitted or crocheted; knitted or crocheted parts of garments or of clothing accessories:
6217 Other made up clothing accessories; parts of garments or of clothing accessories, other than those of heading 6212:
6307 Other made up articles, including dress patterns:
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
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 Bad Costume (style 36230) 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. 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 N061590, CBP classified the leg coverings in heading 6307, HTSUS, which provides for “Other made up articles, including dress patterns.” In NY N295237, CBP classified the leg coverings in heading 6117, HTSUS, which provides for “Other made up clothing accessories, knitted or crocheted; knitted or crocheted parts of garments or of clothing accessories.” In NY N092979 and NY N092981, CBP classified the leg coverings in heading 6217, HTSUS, which provides for “Other made up clothing accessories; parts of garments or of clothing accessories, other than those of heading 6212.” Note 1(n) to Section XI, HTSUS, states that Section XI, HTSUS, does not cover “Footwear or parts of footwear, gaiters or leggings or similar articles of chapter 64.” Therefore, since the merchandise is classifiable in heading 6406, HTSUS, it cannot also be classifiable in headings 6117, 6212, or 6217, HTSUS.
On the other hand, 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 leg coverings 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 Bad Costume (style 36230) textile 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 N295237, dated April 13, 2018, is MODIFIED with regard to the tariff classification of the “Loyal Knit” costume (Item CB17006) “leg covers.”
NY N092979, dated March 2, 2010, is MODIFIED with regard to the tariff classification of the Centurion Costume (Turquoise) (Item # 10530) “leg covers.”
NY N092981, dated March 2, 2010, is MODIFIED with regard to the tariff classification of the Centurion Costume (Eggplant) (Item # 10540) “leg 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