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HQ 967659




July 1, 2005

CLA-2 RR:CR:TE 967659 GGD

CATEGORY: CLASSIFICATION

TARIFF NO.: 6115.93.9020

Lynne W. Wendt, Esquire
Wendt & Temples, LLC
Westpark Pointe, Suite 200
401 Westpark Court
Peachtree City, Georgia 30269

RE: Reconsideration of NY K89369; Footwear without Applied Soles

Dear Ms. Wendt:

This is in response to your request dated April 4, 2005, on behalf of your client, Albahealth, LLC, for reconsideration of New York Ruling Letter (NY) K89369, issued September 21, 2004, to C&J Logistical Services, Inc. (your client’s broker), on behalf of your client. NY K89369 concerns the classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA), of certain footwear used by patients in hospital or clinic settings.

FACTS:

In NY K89369, the items classified are described as socks made of a knit polyester fabric with a slip-resistant tread design on the bottom that are used by patients in a hospital and/or clinical setting. Customs and Border Protection (CBP) classified the goods in subheading 6115.93.9020, HTSUSA, which provides, in part, for “Panty hose...stockings, socks and other hosiery, including... footwear without applied soles, knitted or crocheted: Other: Of synthetic fibers: Other: Other, Other.”

With your request for reconsideration, you submit a sample pair of the items at issue, identified as “Care-Steps® Smooth Side” (Care-Steps), which you state are given to a patient during a hospital stay to keep the feet warm while the patient is in bed, and/or to provide a protective covering for the feet when the patient is out of bed.

A non-skid rubber/plastic material lightly coats the fabric on the portion of the item that would be in contact with the floor. The word “BARIATRIC” forms a portion of this non-skid application.

You state that yarns of 100 percent polyester fibers are imported from Pakistan and “woven” (CBP notes that the Care-Steps are a knit product) into “cuffs” in the U.S., where the non-skid design is also applied. The “cuffs” are then exported to Mexico where they are finished by a cutting and sewing process. (The meaning of the term “cuffs” in relation to the finished product is not clear to CBP.) You enclose the copy of a label that had been used when the finished product was made in China. You state that the legends “disposable footwear” and “single patient use” on the label demonstrate the intention that the Care-Steps be sold as disposable footwear to the healthcare industry, and that, other than the statement “Made in Mexico,” the labels for the items at issue will contain the same information

ISSUE:

Whether the merchandise identified as “Care-Steps” is properly classified as footwear under chapter 64, HTSUSA; as other made-up textile articles in subheading 6307.90.9889, HTSUSA; or as footwear without applied soles in subheading 6115.93.9020, HTSUSA.

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.

You contend that the Care-Steps should be classified in subheading 6307.90.9889, HTSUSA, as other made up textile articles. You cite to NY 809412, dated April 12, 1995, in which samples described as “Disposable Foot Socks” were classified in subheading 6307.90.9989. Those items were tubular shaped, made of 100 percent nylon knit fabric, and intended to be worn while trying on shoes in a shoe store. The items were to be disposed of after one use. You assert that classification of the Care-Steps as socks in subheading 6115.93.9020, HTSUSA, is improper because,
unlike traditionally constructed socks, they are disposable, they have minimal stitching around the tops, they have no stitching for reinforcement of the toe area, they have no sewn-in heel, and they would likely unravel if subjected to one or more machine washings. You note that the non-skid application is intended to be in contact with the floor, an indication that the Care-Steps are not to be worn with footwear as traditional socks or hosiery would be. You point out that the Care-Steps closely resemble the so-called ‘slipper socks’ classified as footwear in chapter 64, but since they lack the separately applied sole required of footwear classified in that chapter, they are not classifiable therein. You maintain that since the Care-Steps are not provided for under heading 6115 or chapter 64, they are properly classified as other made up textile articles in subheading 6307.90.9889, HTSUSA.

Among other merchandise, chapter 64, HTSUSA, covers footwear. Note 1(b) to chapter 64 states that “[t]his chapter does not cover: Footwear of textile material, without an outer sole glued, sewn or otherwise affixed or applied to the upper (section XI).” In pertinent part, note 4(b) to chapter 64 states that “[t]he 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.”

Section XI, HTSUSA, the section under which chapters 61 and 63 fall, covers textiles and textile articles. Note 1(n) to section XI states that “[t]his section does not cover: Footwear or parts of footwear, gaiters or leggings or similar articles of chapter 64.” Chapter 61, HTSUSA, covers articles of apparel and clothing accessories, knitted or crocheted. Chapter 63, HTSUSA, covers other made up textile articles, needlecraft sets, worn clothing, worn textile articles, and rags. Among other goods, heading 6115, HTSUSA, covers “...stockings, socks and other hosiery, including...footwear without applied soles....” [Emphasis added.] Heading 6307, HTSUSA, covers “Other made up articles, including dress patterns.” In pertinent part, the EN to heading 6307 state that “[t]his 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.” [Emphasis in original.]

The Care-Steps at issue are textile articles whose entire underfoot area would be in contact with the ground. In order for such footwear to be classified in chapter 64, HTSUSA, the outer sole must be a separately identifiable component prior to its application to the upper. It must encompass essentially the entire underfoot area, and the complete article must not be designed to be worn inside other footwear. Mere patches, pads, dots, strips, etc., attached to a sock’s underfoot area, do not, in and of themselves, constitute an applied sole. Such materials attached to a pre-existing outer sole, however, are considered in determining the constituent material having the
greatest surface area in contact with the ground. The Care-Steps do not appear to be designed to be worn inside other footwear. The non-skid material that is applied to the items is not a separately identifiable component which encompass essentially the entire underfoot area. The non-skid application does not constitute an outer sole in and of itself, and the Care-Steps do not incorporate a pre-existing outer sole. We find that the Care-Steps do not have an applied sole, and therefore, do not constitute footwear that is covered by chapter 64, HTSUSA. The articles do appear to constitute “footwear without applied soles,” which is merchandise specifically named in the text of heading 6115, HTSUSA. As indicated by the EN to heading 6307, made up textile articles that are included more specifically in other headings of Section XI (e.g., heading 6115) are not covered by heading 6307.

In asserting that the Care-Steps are covered by heading 6307, and should be classified in subheading 6307.90.9889, HTSUSA, you have cited to NY 809412, in which the classification of “disposable foot socks” used in shoe stores seems to support your position. The ruling appears to be an anomaly, however, and steps are being taken to propose its revocation.

Numerous rulings that you have not cited or mentioned clearly support classification of the Care-Steps under heading 6115, HTSUSA, as “footwear without applied soles, knitted or crocheted.“ See, e.g., NY D82252, dated September 23, 1998 (knitted disposable foot sock used for sanitary purposes by potential buyers in retail shoe stores, then thrown away, classified in subheading 6115.93.9020); NY H80268, dated May 18, 2001 (knitted disposable tube socks classified in subheading 6115.93.9020); NY K85808, dated May 25, 2004 (knitted slipper socks with anti-skid pads around the soles classified in subheading 6115.93.9010); NY R00232, dated April 28, 2004 (knitted tube sock with plastic traction dots classified in subheading 6115.93.9020); NY F81270, dated February 2, 2000 (knitted slipper socks with heat-applied rubber snowflakes that did not constitute applied soles, classified in subheading 6115.93.9020); Port Director Ruling Letter (PD) C89450, dated July 21, 1998 (knitted slipper socks with decorative, non-skid bottoms classified in subheading 6115.93.9020); NY L83047, dated April 8, 2005 (knitted slipper sock without separately applied outer sole classified in subheading 6115.93.9020); and NY K89105, dated September 30, 2004 (knitted “gripper slippers” with traction dots classified in subheadings 6115.93.9020 and 6115.92.9020).

In light of the above analysis and of CBP’s longstanding and consistent classification treatment of goods substantially similar to the Care-Steps, we find that the items are classified as footwear without applied soles in subheading 6115.93.9020, HTSUSA.

HOLDING:

NY K89369, issued September 21, 2004, is hereby affirmed.

The items identified as “Care-Steps® Smooth Side” (Care-Steps), are classified in subheading 6115.93.9020, HTSUSA, the provision for “Panty hose...stockings, socks and other hosiery, including...footwear without applied soles, knitted or crocheted: Other: Of synthetic fibers: Other: Other, Other.” The general column one duty rate is 14.6 percent ad valorem.

Merchandise classified in subheading 6115.93.9020, HTSUSA, falls within textile category 632. Quota/visa requirements are no longer applicable for merchandise which is the product of World Trade Organization (WTO) member countries. The textile category number above applies to merchandise produced in non-WTO member-countries. Quota and visa requirements are the result of international agreements that are subject to frequent negotiations and changes. To obtain the most current information on quota and visa requirements applicable to this merchandise, we suggest you check, close to the time of shipment, the "Textile Status Report for Absolute Quotas," which is available on our web cite at www.cbp.gov. For current information regarding possible textile safeguard actions on goods from China and related issues, we refer you to the web cite of the Office of Textiles and Apparel of the Department of Commerce at http://otexa.ita.doc.gov.

While we affirm the classification determination of NY K89369, and note that a country of origin determination for the merchandise was not requested, it is not clear that the facts you present - regarding yarns imported from Pakistan that are “woven” [sic] into “cuffs” in the U.S. (where the non-skid design is also applied) and exported to Mexico to be finished by a cutting and sewing process - would confer Mexican origin on the product. We therefore suggest that you submit a country of origin ruling request to U.S. Customs and Border Protection, Customs Information Exchange (Attn: Binding Rulings Section), One Penn Plaza, 10th Floor, New York, New York 10119, supplying a sample of the merchandise in its condition as exported to Mexico, and a sample of the finished good.

Sincerely,


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