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HQ 963595




February 19, 2002

CLA-2 RR:CR:TE 963595 GGD

CATEGORY: CLASSIFICATION

TARIFF NO.: 6405.20.9090

Arlen T. Epstein, Esquire
Tompkins & Davidson, LLP
One Astor Plaza
1515 Broadway
New York, New York 10036-8901

RE: Slippers and Matching Carrying Bag; Composite Good

Dear Mr. Epstein:

This letter is in response to your request of June 8, 1999, concerning the classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) of a carrying bag and ballerina slippers made in China. Samples were submitted with your request. We regret the delay in responding.

FACTS:

The sample merchandise, described as a "Girl's Slipper in a Bag" and identified by style PP 18723, consists of a heart-shaped carrying bag composed of unreinforced, transparent, polyvinyl chloride (PVC) plastic sheeting, and a pair of girls' slippers with uppers and outer soles constructed mostly of textile materials. The uppers are made of a woven fabric composed of 80 percent nylon and 20 percent metallic fiber and are lined with a textile fabric of 100 percent polyester. An elastic band enclosed in textile material encircles the top opening of the slipper. The top front of each slipper features a silver colored, metal heart atop two pink bows of textile fabric. The outer soles are composed of a textile material that is 90 percent polyester and 10 percent cotton. Attached to the soles are an evenly spaced array of circular PVC traction dots, each of which measures approximately 1/8 of an inch in diameter, and is spaced approximately 1/4 of an inch apart on center (i.e., measured from the center of one dot to the center of
the adjoining dot) from side to side and along diagonals. The plastic bag measures approximately 8-1/2 inches in width by 6-1/4 inches in height by 1-1/2 inches in depth. The heart-shaped bag's textile carrying strap and trim match the pink metallic fabric of each slipper's upper material.

ISSUES:

1) In what provisions are the slippers and the bag classified individually?

2) Do the slippers and bag constitute a composite good or are the components separately classified?

LAW AND ANALYSIS:

Classification under the HTSUSA 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 GRI may then be applied. The Explanatory Notes (EN) to the Harmonized Commodity Description and Coding System, which represent the official interpretation of the tariff at the international level, facilitate classification under the HTSUSA by offering guidance in understanding the scope of the headings and GRI.

We first examine the classification of the slippers. Chapter 64, HTSUSA, covers footwear, gaiters and the like, and parts of such articles. The EN to chapter 64, HTSUSA, state that it is the constituent material of the outer sole and of the upper which determines classification in headings 6401 to 6405. Regarding the constituent material of the outer sole, note 4(b) to chapter 64 states:

The constituent material of the outer sole shall be taken to be the material having the greatest surface area in contact with the ground, no account being taken of accessories or reinforcements such as spikes, bars, nails, protectors or similar attachments.

Although plastic traction dots are “attached” to the outer surface of the slippers' outer sole, they are not like the “spikes, bars, nails, protectors or similar attachments” named in note 4(b) to chapter 64. The dots must therefore be taken into account in determining the constituent material of the outer sole, and classification of the slipper is dependent upon whether the rubber/plastic material or the textile material will have the greatest contact with the ground.

In Headquarters Ruling Letters (HQ) 963604 and HQ 963737, both dated March 29, 2000, and both published on April 19, 2000, in the Customs Bulletin, Volume 34, Number 16, this office revoked New York Ruling Letters (NY) E82374 (dated June 10, 1999) and NY E88932 (dated December 17, 1999), respectively. We noted that Customs had issued many rulings concerning children’s footwear with traction dots, and that those rulings had contained much “discussion” as to different and varying criteria, including a sole’s rigidity or lack thereof. We stated that the focus of the analysis is the outer surface of the sole, the design of the plastic traction dots, and that the determinative classification factor is the size and placement of the dots on a particular shoe.

In both HQ 963604 and HQ 963737, laboratory analysis of the outer soles revealed surface percentages of approximately 89 percent textile materials and 11 percent rubber/plastic materials. The constituent material with the greatest surface area in contact with the ground in both cases was found to be textile material, not the rubber/plastic material of the slightly rounded traction dots. Like the slipper at issue in this case, the footwear subject to both rulings above had uppers that were composed of textile materials (although of vegetable, not man-made, fibers). That fact and the findings concerning the constituent material of the outer soles, formed the basis for reclassification of that footwear to subheading 6405.20.3090, HTSUSA.

In light of the similarity of the sample's composition to the footwear discussed above, and of our analysis of this slipper's construction and features, we find that the constituent material of the slipper with the greatest surface area in contact with the ground is textile material. The slipper is classified in subheading 6405.20.9090, HTSUSA, which provides for "Other footwear: With uppers of textile materials: Other, Other: Other." See also, HQ 962095, dated December 15, 2000, and HQ 962519, dated December 10, 1999.

With regard to the classification of the carrying bag, heading 4202, HTSUSA, covers, among other containers, traveling bags, toiletry bags, handbags, purses, sports bags, and similar containers, of sheeting of plastics. Subheading 4202.92, HTSUSA, provides in part for travel, sports and similar bags. Additional U.S. Note 1 to chapter 42, HTSUSA, states:

For the purposes of heading 4202, the expression "travel, sports and similar bags" means goods, other than those falling in subheadings 4202.11 through 4202.39, of a kind designed for carrying clothing and other personal effects during travel, including backpacks and shopping bags of this heading....

Subheadings 4202.21 through 4202.29, HTSUSA, provide for handbags. The word “handbag” is defined in Webster’s New World Dictionary, Second College Edition, 1972, as: “1. a small container for money, toilet articles, keys, etc., carried by women; purse 2. a small suitcase or valise.”

In HQ 962364, dated December 8, 1998, we classified three separate bags as travel bags in subheading 4202.92.1500, HTSUSA. Each of the bags measured approximately 9 inches in height by 11-1/2 inches in width by 3 inches in depth. Two of the bags had a zippered central compartment, no lining, and no additional pockets. We found that none of the bags was designed or intended to be used as a container for items normally carried in a woman’s handbag, and that all three were for carrying various personal effects other than, or in addition to, those normally carried in a woman’s handbag.

The bag at issue in this case is designed to carry the slippers and perhaps a few additional items that a child might require during, or traveling to and from, a dance class. The bag has the characteristics of a small travel bag for carrying various personal effects other than those normally carried in a woman’s handbag. We find that the bag is classified in subheading 4202.92.4500, HTSUSA, which provides, in pertinent part, for "...traveling bags...: Other: With outer surface of sheeting of plastic or of textile materials: Travel, sports and similar bags: Other."

The "Girl's Slipper in a Bag" cannot be classified by reference to GRI 1, however, because it consists of two individual components that are classifiable in different headings, i.e., heading 6405, which covers the slipper, and heading 4202, which covers the bag.

In pertinent part, GRI 2(b) states:

The classification of goods consisting of more than one material or substance shall be according to the principles of rule 3.

GRI 3(a) directs that the headings are regarded as equally specific when they each refer to part only of the materials contained in composite goods, or of the items in a set put up for retail sale. Whether the separate headings in this case are regarded as equally specific depends upon whether the slippers and the bag constitute a composite good or a set put up for retail sale.

We look to GRI 3(b), which states in part that:
goods...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.

As with GRI 3(a) above, the applicability of GRI 3(b) is dependent upon whether the complete article is deemed to comprise a composite good or a set. Explanatory Note X(b) to GRI 3(b) provides, in pertinent part, the following guidance:

For the purposes 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 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).

The slippers and the bag are designed and intended for very different uses. They are not put up together to meet a particular need or to carry out a specific activity as required by criterion "(b)" above. They therefore do not comprise a set.

In pertinent part, Explanatory Note IX to GRI 3(b) indicates that:

For the purposes of this Rule, composite goods made up of different components shall be taken to mean not only those in which the components are attached to each other to form a practically inseparable whole but also those with separable components, provided these components are adapted one to the other and are mutually complementary and that together they form a whole which would not normally be offered for sale in separate parts.

In this case, the components are separable. Although the bag is not likely to be in use when the slippers are being worn, the EN does not specifically state that each component must be adapted to the other in all respects. The two components are adapted to be used, at times, together. The bag is only slightly larger than the pair of
slippers and it is not intended to carry much in the way of additional personal effects. The design and appearance of the bag - particularly its pink metallic fabric carrying strap and trim - closely resemble the design and appearance of the slippers it carries and displays and this resemblance is clearly apparent through the transparent plastic sheeting. The bag would not likely be sold as an independent product for carrying various other personal effects (as would travel bags such as backpacks, shopping bags, and sports bags). Although slippers are not always sold with pouches, placement of the slippers in the pouch during travel would protect other personal effects and clothing from dirt the slippers pick up, and would help to keep the pair together, the transparency revealing whether any contents are missing from the bag. We find that the slippers and pouch constitute a composite article. See also HQ 958759, dated March 21, 1996, and HQ 086580, dated May 24, 1990.

In order to determine the essential character of the composite good, we next view Explanatory Note VIII to GRI 3(b), which provides the following guidance:

The 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.

The carrying bag's role of storing, protecting, carrying, and displaying the slippers is outweighed by the role and value of the slippers, which are the reason for the bag's inclusion as a component of the complete good. The slippers warm and protect the wearer’s feet and provide a stylish flair or statement for a young performer. The value of the slippers would also appear to be significantly greater than that of the bag. The slippers, therefore, impart the composite good's essential character. The slippers and bag are classified in subheading 6405.20.9090, HTSUSA.

HOLDING:

The merchandise described as a "Girl's Slipper in a Bag" and identified by style PP 18723, is classified in subheading 6405.20.9090, HTSUSA, the provision for "Other footwear: With uppers of textile materials: Other, Other: Other." The general column one duty rate is 12.5 percent ad valorem.

Sincerely,

John Durant, Director

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