CLA-2 CO:R:C:M 952170 DWS
Mr. John B. Pellegrini
Ross & Hardies
Park Avenue Tower
65 East 55th Street
New York, NY 10022-3219
RE: Footwear; Bootie; Walking Shoe; Outer Sole; Explanatory
Note C to Chapter 64; Explanatory Note 64.05; Clothing
Accessory; HQ 086055; HQ 081945; Applied Sole; Set; GRI 3(b);
Explanatory Note 3(b)(X); 6405.20.90; 6307.90.99
Dear Mr. Pellegrini:
This is in response to your letter of July 1, 1992, on behalf
of Reebok International, Ltd., concerning the classification of
booties under the Harmonized Tariff Schedule of the United States
(HTSUS).
FACTS:
The merchandise consists of a snug fitting bootie, possessing
an elasticized man-made fiber upper and applied sole of the same
material. The bootie is meant to be worn over a person's foot when
it is slipped into a corresponding walking shoe. Counsel advises
that the walking shoes are "complete footwear and may be worn
without the booties." A pair of booties will be imported and sold
at retail with a pair of walking shoes, in the same package and at
a unitary price. The bootie will also be imported and sold
separately from the walking shoes.
ISSUE:
What is the proper classification of the bootie when imported
separately? Whether a pair of booties and a pair of walking shoes,
when imported together, constitute a set under the HTSUS?
2
LAW AND ANALYSIS:
Classification of merchandise under the HTSUS is in accordance
with the General Rules of Interpretation (GRI's), taken in order.
GRI 1 provides that classification is determined according to the
terms of the headings and any relative section or chapter notes.
We will first deal with the classification of the bootie when
imported separately. It is claimed that the bootie is classifiable
under subheading 6405.20.90, HTSUS, which provides for: "[o]ther
footwear: [w]ith uppers of textile materials: [o]ther."
We do note Harmonized Commodity Description and Coding System
Explanatory Note C to chapter 64, HTSUS. In understanding the
language of the HTSUS, the Explanatory Notes may be utilized. The
Explanatory Notes, although not dispositive, are to be used to
determine the proper interpretation of the HTSUS. 54 Fed. Reg.
35127, 35128 (August 23, 1989). In part, Explanatory Note C to
chapter 64 (p. 874) states:
[t]he term "outer sole" as used in headings 64.01 to 64.05
means that part of the footwear (other than an attached
heel) which, when in use, is in contact with the ground.
In part, Explanatory Note 64.05 (p. 879) states that:
[s]ubject to Notes 1 and 4 to this Chapter, this heading
covers all footwear having outer soles and uppers of a
material or combination of materials not referred to in the
preceding headings of this Chapter.
The heading includes in particular:
(1) xxx
(2) xxx
(3) Footwear with outer soles of wood, cork, twine or rope,
paperboard, furskin, textile fabric, felt, nonwovens,
linoleum, raffia, straw, loofah, etc. The uppers of
such footwear may be of any material.
It is our position that the subject bootie is not classifiable
under heading 6405, HTSUS, because the bootie does not possess an
outer sole. It has an applied sole, but not a sole "which, when
in use, is in contact with the ground." The bootie is intended to
be worn over the foot when the foot is in a walking shoe. The
bootie, as marketed, is not intended to come into contact with the
ground. Inasmuch as the bootie does not possess an outer sole,
under Explanatory Note 64.05, it is precluded from classification
under heading 6405, HTSUS, because that heading "covers all
footwear having outer soles . . ."
Heading 6117, HTSUS, provides for: "[o]ther made up clothing
accessories, knitted or crocheted; knitted or crocheted parts of
garments or of clothing accessories."
In HQ 086055, dated January 9, 1990, neoprene boot liners were
held to be classifiable under heading 6117, HTSUS. The boot liner
was precluded from classification as footwear because it did not
possess an outer sole. Inasmuch as the subject bootie is similar
in kind to the boot liner in HQ 085055, it is our position that the
bootie is classifiable under heading 6117, HTSUS. Specifically,
it is classifiable under subheading 6117.80.00, HTSUS, which
provides for: "[o]ther made up clothing accessories, knitted or
crocheted; knitted or crocheted parts of garments or of clothing
accessories: [o]ther accessories."
It has been suggested that HQ 081945, dated January 29, 1990,
which dealt with the classification of disposable shoe covers, is
dispositive as to the classification of the bootie. In that
ruling, it was stated that:
[i]n our view, shoes are commonly considered to be apparel
accessories and not "clothing". While shoe covers may be
considered to be shoe accessories, accessories of clothing
accessories are not, themselves, clothing accessories. This
is in consonance with an opinion of the Customs Cooperation
Council contained in its 1987 Compendium of Classification
Opinions. While that opinion is not binding on the United
States, it is an added factor to be considered along with all
other factors.
The disposable shoe covers were held to be classifiable under
subheading 6307.90.99, HTSUS, which provides for: "[o]ther made up
articles, including dress patterns: [o]ther: [o]ther: [o]ther."
As the reasoning in HQ 081945 is inconsistent with our present
position and with the reasoning in HQ 086055, we are currently
considering its revocation.
We will now deal with the classification of the pair of
booties and the pair of walking shoes imported together. GRI 3
must be considered in the classification of merchandise put up in
sets for retail sale. GRI 3(b) provides that:
[m]ixtures, 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.
Explanatory Note 3(b)(X) (p. 4), HTSUS, provides that "[f]or
the purpose 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 . . .;
(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
users without repacking (e.g., in boxes or cases or on
boards)."
It is our position that the pair of booties and the pair of
walking shoes imported together is a set for classification
purposes. It fully satisfies all three requirements of Explanatory
Note 3(b)(X), HTSUS.
Because the booties and shoes are a set, its essential
character must be determined. In general, essential character has
been construed to mean the attribute which strongly marks or serves
to distinguish what an article is; that which is indispensable to
the structure, core, or condition of the article. In addition,
Explanatory Note VIII to GRI 3(b) provides further factors which
determine the essential character of goods. Factors such as bulk,
quantity, weight or value, or the role of a constituent material
in relation to the use of the goods are to be utilized, though the
importance of certain factors will vary between different kinds of
goods. HCDCS, Vol. 1, p. 4.
It is our position that the essential character of the booties
and shoes set is imparted by the walking shoes. The booties are
intended to complement the shoes and are easily replaceable. They
are intended to provide comfort to a person who is wearing the pair
of walking shoes.
HOLDING:
The subject bootie imported separately is classifiable under
subheading 6117.80.00, HTSUS, which provides for: "[o]ther made up
clothing accessories, knitted or crocheted; knitted or crocheted
parts of garments or of clothing accessories: [o]ther accessories."
The general, column one rate of duty is 15.5 percent ad valorem.
For classification purposes, when the pair of booties and the
pair of walking shoes are imported together, they constitute a set
under GRI 3(b). Consequently, because the pair of walking shoes
imparts the essential character of the set, the pair of booties
will be classifiable in the provision for the walking shoes under
the HTSUS.
The designated textile and apparel category may be subdivided
into parts. If so, the visa and quota category requirements
applicable to the subject merchandise may be affected. Since part
categories are the result of international bilateral agreements
which are subject to frequent renegotiations and changes, to obtain
the most current information available, we suggest you check, close
to the time of shipment, the Status Report on Current Import Quotas
(Restraint Levels), an issuance of the U.S. Customs Service, which
is updated weekly and is available at your local Customs office.
Due to the changeable nature of the statistical annotation
(the ninth and tenth digits of the classification) and the
restraint (quota/visa) categories, you should contact your local
Customs office prior to the importation of this merchandise to
determine the current status of any import restraints or
requirements.
Sincerely,
John Durant, Director