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HQ 952170

December 23, 1992

CLA-2 CO:R:C:M 952170 DWS

CATEGORY: CLASSIFICATION

TARIFF NO.: 6307.90.99

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; Heading 6117; HQ 081945; Heading 6115; Applied Sole; Set; GRI 3(b); Explanatory Note 3(b)(X); 6405.20.90

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?

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:

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:

(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 . . ."

It has been suggested that the bootie is classifiable under heading 6117, HTSUS, which provides for: "[o]ther made up clothing accessories, knitted or crocheted; knitted or crocheted parts of garments or of clothing accessories." However, in HQ 081945, January 29, 1990, which dealt with the classification of disposable shoe covers, 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.

Consequently, by the reasoning in HQ 081945, because the bootie is a shoe accessory, it cannot be a clothing accessory, and, therefore, it cannot be classifiable under heading 6117, HTSUS.

It has also been suggested that the bootie is classifiable under heading 6115, HTSUS, which provides for: "[p]anty hose, tights, stockings, socks and other hosiery, including stockings for varicose veins, and footwear without applied soles, knitted or crocheted." The bootie is not classifiable under this heading because it is not covered by any of the described articles of this heading.

Because the bootie is not specifically classifiable anywhere in the HTSUS, it is our position that it is classifiable under subheading 6307.90.99, HTSUS, which provides for: [o]ther made up articles, including dress patterns: [o]ther: [o]ther: [o]ther:

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 6307.90.99, HSTUS, which provides for: [o]ther made up articles, including dress patterns: [o]ther: [o]ther: [o]ther: [o]ther." The general, column one rate of duty is 7 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.

Sincerely,

John Durant, Director

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