H249079

HQ H249079 August 25, 2021 OT:RR:CTF:FTM H249079 PJG CATEGORY: Classification TARIFF NO.: 6406.90.30 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 nondurable 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

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