H239482

HQ H239482 May 21, 2021 OT:RR:CTF:FTM H239482 PJG CATEGORY: Classification TARIFF NO.: 6406.90.15 Ms. Christian Lee Handerson Handicraft Mfg. Co. 11F/6, No.2 Jian-Ba Road, Chung-Ho Taipei, Taiwan RE: Modification of NY N086942, NY N080395, NY N003909, NY G88706, NY D85843 and NY D83322: Classification of Textile Leg Coverings Dear Ms. Lee: This is in reference to New York Ruling Letter (“NY”) N086942, dated December 29, 2009, issued to you concerning the tariff classification of five different adult costumes under the Harmonized Tariff Schedule of the United States (“HTSUS”). Specifically, NY N086942 classified the following costumes: Style W-3030-01 Countryside Lady Costume; Style M-1639- 00 Robin Hood Costume; Style W-3221-00 Maid Marian Costume; Style M-1623-01 Mad Hatter Costume; and Style W-3223-00 Darkness Alice Costume. This decision concerns Style M-1639- 00 Robin Hood Costume, and in particular, two knee-high, polyester leg coverings, which are referred to as “boot covers” in NY N086942, designed to resemble the boots worn by the character Robin Hood when worn over the consumer’s shoes. In NY N086942, U.S. Customs and Border Protection (“CBP”) classified the leg coverings in subheading 6117.80.95, HTSUS, 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.” We have reviewed NY N086942 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 N086942 and five other rulings with substantially similar merchandise: NY N080395, dated November 6, 2009, NY N003909, dated December 21, 2006, NY G88706, dated April 18, 2001, NY D85843, dated January 8, 1999, and NY D83322, dated October 29, 1998. 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 March 17, 2021, in Volume 55, Number 10, of the Customs Bulletin. No comments were received in response to this notice. However, upon further consideration, we have edited the sentence in the proposed ruling that read “[l]ike leggings and gaiters, the leg coverings extend over the ankle and up to the knee” to now read instead as “[l]ike leggings and gaiters, the leg coverings provide coverage extending to the ankle or up to the knee.” The purpose of this change is to clarify that leggings and gaiters do not always extend over the ankle and up to the knee. FACTS: The Robin Hood polyester leg coverings have elastic straps on the bottom. These elastic straps secure the leg coverings around the shoe. The leg coverings extend up to the consumer’s knees and have cuffs. They are trimmed with gold-colored trim. When the consumer pulls the leg coverings on top of regular shoes, the leg coverings resemble the boots worn by the character Robin Hood. ISSUE: Whether the leg coverings are classified as clothing accessories under heading 6117, HTSUS, or as gaiters, leggings and similar articles under heading 6406, 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: * * * 6117.80 Other accessories: * * * Other: * * * 6117.80.95 Other * * * 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 Note 1(n) to Section XI, HTSUS, provides as follows: 1. This section does not cover: (n) Footwear or parts of footwear, gaiters or leggings or similar articles of chapter 64; 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. EN 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. In accordance with Note 1(n) to Section XI, HTSUS, Section XI, which consists of Chapters 50-63, HTSUS, does not cover “[f]ootwear or parts of footwear, gaiters or leggings or similar articles of chapter 64.” Therefore, if the leg coverings are classifiable under heading 6406, HTSUS, they are precluded from classification under heading 6117, HTSUS. Heading 6406, HTSUS, provides for gaiters and leggings. The terms “gaiters” and “leggings” are not defined in the HTSUS.1 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

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:* * *6117.80 Other accessories:* * *Other:* * *6117.80.95 Other* * *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 materialsNote 1(n) to Section XI, HTSUS, provides as follows:1. This section does not cover:(n) Footwear or parts of footwear, gaiters or leggings or similar articles of chapter 64;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.EN 64.06(II) provides as follows:(II) GAITERS, LEGGINGS, AND SIMILAR ARTICLES, AND PARTS THEREOFThese 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 mat