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HQ 954879




October 29, 1993

CLA-2 CO:R:C:M 954879 DFC

CATEGORY: CLASSIFICATION

TARIFF NO.: 6402.91.90; 6307.90.99

John B. Pellegrini, Esq.
Ross & Hardies
Park Avenue Tower
65 East 55th Street
New York, New York 10022-3219

RE: Footwear; Ankle support; "Power Sock;" Sets; Essential character; Quota; GRI 5; HRL's 086611, 952295, 953219

Dear Mr. Pellegrini:

In a letter dated August 19, 1993, on behalf of Avia Group International, Inc., you inquired as to the tariff classification under the Harmonized Tariff Schedule of the United States (HTSUS), of a combination of articles consisting of footwear and an ankle support. A half-pair of shoes, style 990, a "Power Sock," and advertising material were submitted for examination.

FACTS:

The footwear is a man's over-the ankle athletic shoe with an upper of rubber and plastics and a unit molded bottom of rubber/ plastics. The unit-molded bottom overlaps the upper by 1/4 inch or more around the entire perimeter of the shoe and is considered a foxing-like band for tariff purposes.

Style 990 will be imported and sold at retail with the "Power Sock." The "Power Sock" is made of neoprene covered with man-made fiber. It is worn over the ankle and heel and is designed to enhance ankle support and stability. Although intended to be worn in conjunction with the "Power Sock", style 990 is complete in and of itself and can be worn without it.

The combination will be sold in a shoe box. The "Power Sock" will be presented in a plastic pouch. Both articles as well as the plastic pouch, will be produced in China.

ISSUE:

Whether the footwear and the "Power Socks" imported together constitute a set for tariff purposes?

What is the tariff classification of the "Power Sock" as a separate article?

LAW AND ANALYSIS:

Classification of goods under the HTSUS is governed by the General Rules of Interpretation (GRI's). GRI 1 provides that "classification shall be determined according to the terms of the headings and any relative section or chapter notes, and, provided such headings or notes do not otherwise require, according to [the remaining GRI's taken in order]." In other words, classification is governed first by the terms of the headings of the tariff and any relative section or chapter notes.

We will deal first with the issue of whether the footwear and the "Power Socks" imported together constitutes a set for tariff purposes. GRI 3, HTSUS, which is relevant to a determination of this issue reads in pertinent part, as follows:

3. When by application of rule 2(b) or for any other reason, goods are, prima facie, classifiable under two or more headings, classification shall be effected as follows:

(a) The heading which provides the most specific description shall be preferred to headings providing a more general description. However, when two or more headings each refer to part only of the materials or substances contained in mixed or composite goods . . . those headings are to be regarded as equally specific in relation to those goods, even if one of them gives a more complete or precise description of the goods.

(b) Mixtures, 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.

GRI 3(b), HTSUS, is germane because GRI 3(a), HTSUS, cannot be used in determining classification. The Harmonized Commodity Description and Coding System Explanatory Notes (EN) to the HTSUS, although not dispositive should be looked to for the proper interpretation of the HTSUS. See 54 FR 35128 (August 23, 1989). EN (X) to GRI 3(b) at p. 4, provides that the term "goods put up in sets for retail sale" 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 meed 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 opinion that the pair of shoes, style 990, imported with a pair of "Power Socks" meet the criteria set forth above for being considered a set for tariff purposes. See Headquarters Ruling Letter (HRL) 953219 dated February 9, 1993. Since we have concluded that the shoes and "Power Socks" constitute a set for tariff purposes, it is necessary to determine which component of the set imparts the essential character thereto. EN (VIII) to GRI 3(b) at page 4, reads as follows:

[t]he factor which determines essential character will vary as between different kinds of goods. It may, for example, be determined by the nature of the material or component, its bulk, quantity, weight or value, or by the role of a constituent material in relation to the use of the goods.

It is our opinion that the essential character of the footwear and "Power Socks" combination is imparted by the shoes. The "Power Socks" or ankle supports perform a subordinate function to that of the shoes which provide a walking or running surface which is the primary function of the combination.

In view of the foregoing, it is our position that the footwear and "Power Socks" combination constitute a set classifiable under subheading 6402.91.90, HTSUS, which provides for other footwear with outer soles and uppers of rubber or plastics, covering the ankle, other, other, valued over $12/pair. valorem.

We will now deal with the classification of the "Power Socks" or ankle supports. The possible classifications of this item are under heading 9021, HTSUS, as orthopedic appliances or under subheading 6307.90, HTSUS, as other made-up textile articles.

EN 90.21 reads, in pertinent part, at page 1497, as follows:

(1) ORTHOPAEDIC APPLIANCES

These are appliances for:

(i) Preventing or correcting bodily deformities; or (ii) Supporting or holding organs following an illness or operation.

They include:

(6) Orthopaedic footwear, having an enlarged leather stiffener which may be reinforced with a metal or cork frame, made only to measure.

(7) Special insoles, made to measure.

(9) Orthopaedic foot appliances (talipes appliances, leg braces, with or without spring support for the foot, surgical boots, etc.).

The heading does not include:

(b) Simple protectors or devices designed to reduce pressure on certain parts of the foot . . .

(d) Mass-produced footwear the inner soles of which have been simply arched to alleviate flat-footedness (Chapter 64).

A reading of the above-cited portion of EN 90.21, persuades us that the "Power Socks" are closer in nature and type to the excluded products and thus are not within the ambit of heading 9021, HTSUS.

With respect to classification of the "Power Socks" under heading 6307, HTSUS, as other made up articles, including dress patterns, EN 63.07 at page 868, is especially instructive. It reads in pertinent part, as follows:

This heading covers made up articles of any textile material which are not included more specifically in other headings of Section XI or elsewhere in the Nomenclature.

It includes, in particular:

(27) Support articles of the kind referred to in Note 1(b) to Chapter 90 for joints (e.g., knees, ankles, elbows or wrists) or muscles (e.g. , thigh muscles), other than those falling in other headings of Section XI.

In view of the foregoing, it is our opinion that the "Power Sock" imported separately is classifiable under subheading 6307.90.99, HTSUS. Merchandise classifiable under subheading 6307.90.99, HTSUS, is not subject to quota restraints or visa requirements. See HRL 952295 dated January 5, 1993.

The tariff treatment of the plastic pouch is governed by GRI 5, HTSUS, which reads as follows:

5. In addition to the foregoing provisions, the following rules shall apply in respect of the goods referred to therein:

(a) Camera cases, musical instrument cases, gun cases, drawing instrument cases, necklace cases and similar containers, specially shaped or fitted to contain a specific article or set of articles, suitable for long-term use and entered with the articles for which they are intended, shall be classified with such articles when of a kind normally sold therewith. This rule does not, however, apply to containers which give the whole its essential character;

(b) Subject to the provisions of rule 5(a) above, packing materials and packing containers entered with the goods therein shall be classified with the goods if they are of a kind normally used for packing such goods. However, this provision does not apply when such packing materials or packing containers are clearly suitable for repetitive use.

With respect to the tariff treatment of the plastic pouch, you have informed us that it is of flimsy construction, not specially shaped or fitted to contain a specific article or set of articles, and is not suitable for repetitive use.

Based on your description of the plastic pouch, it is our opinion that GRI 5(a), HTSUS, is inapplicable because the pouch is neither specially shaped or fitted to contain a specific article or set of articles nor is it suitable for long term use.

The tariff treatment of the pouch is governed by GRI 5(b), HTSUS, noting that is clearly not suitable for repetitive use. Consequently, the pouch is considered packing material pursuant to GRI 5(b), HTSUS, and classifiable with its contents. See HRL 086611 dated May 17, 1990.

HOLDING:

The footwear and the "Power Socks" imported together constitute a set for tariff purposes.

The footwear and "Power Socks" combination are dutiable at the rate of 20% ad valorem under subheading 6402.91.90, HTSUS.

The "Power Socks" imported separately are dutiable at the rate of 7% ad valorem under subheading 6307.90.99, HTSUS.

The plastic pouch is considered packing material pursuant to GRI 5(b), HTSUS, and is classifiable with its contents.

Sincerely,

John Durant, Director
Commercial Rulings Division

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