CLA-2 CO:R:C:M 955705 DFC

Erik D. Weiss, Esq.
Grunfeld, Desiderio, Lebowitz & Silverman
245 Park Avenue
New York, NY 10167-0002

RE: Footwear, w/removable liners; Boot liners; Sets; NYRL 892915; HRL's 953219,086055,952170

Dear Mr. Weiss:

This is in reference to your letter dated December 6, 1993, to the Area Director of Customs in New York, on behalf of E.S. Originals, Inc., concerning the tariff classification under the Harmonized Tariff Schedule of the United States (HTSUS), of a set consisting of a man's athletic shoe, a removable textile liner or "bootie" and a replacement liner or "bootie." Your letter, together with the samples submitted, have been referred to this office for a response.

FACTS:

The sample, identified as style MM 229-X is a man's high- top, lace-up athletic shoe "frame" [shoe without a liner] with a unit-molded plastic sole and a plastic upper. The sole does not overlap the upper by enough for the shoe to have a foxing-like band. The shoe will be imported with two removable textile bootie-like liners of different colors, with applied textile soles. In addition to a narrow, textile topline trim on the shoe, the external surface area of the shoe upper (ESAU) will also be textile where the bootie shows above the topline and the tongue, and where it shows through the three cutouts in the lateral side of the upper. It is our observation that the textile will comprise at least 10% of the ESAU. This will be true even when the round plastic circle on the front at the top of one of the booties is included as accessories or reinforcements.

ISSUE:

1. What is the classification of style MM 229-X imported with one liner? 2. What is the classification of style MM 229-X imported with two liners

3. What is the classification of each liner, if imported separately?

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.

Question 1

In New York Ruling Letter 892915 dated December 30, 1993, addressed to you, Customs held that style MM 229-X imported with one liner is classifiable, assuming that it will be valued over $3 but not over $6.60 per pair, under subheading 6402.91.70, HTSUS, which provides for other footwear with outer soles and uppers of rubber or plastics, covering the ankle, not having uppers of which over 90 percent of the ESAU is rubber or plastics, other, other, valued over $3 but not over $6.50/pair.

Question 2

In Headquarters Ruling Letter (HRL) 953219 dated February 9, 1993, Customs ruled that similar footwear [shoe frames] imported with two or more pairs of liners is classifiable as a set under subheadings 6403.91.60, HTSUS, if the constituent material of the upper is leather or under subheading 6404.11.90, HTSUS, if the constituent material of the upper is textile. Following HRL 953219, it is our opinion that style MM 229- X imported with two liners constitutes a set classifiable under subheading 6402.91.70, HTSUS.

Question 3

Additional U.S. Rule of Interpretation 1(c), HTSUS, which is germane here reads in pertinent part, as follows:

1. In the absence of special language or context which otherwise requires-- (a) a tariff classification controlled by use (other than actual use) is to be determined in accordance with the use in the United States at, or immediately prior to, the date of importation, of goods of that class or kind to which the imported goods belong, and the controlling use is the principal use;

* * *

(c) a provision for parts of an article covers products solely or principally used as a part of such articles but a provision for "parts' or "parts and accessories" shall not prevail over a specific provision for such part or accessory. . . 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). The EN to heading 64.06 at page 879 reads in pertinent part, as follows:

(1) PARTS OF FOOTWEAR (INCLUDING UPPERS WHETHER OR NOT ATTACHED TO SOLES OTHER THAN OUTER SOLES); REMOVABLE IN-SOLES, HEEL CUSHIONS AND SIMILAR ARTICLES

This heading covers:

(A) The various component parts of footwear; these parts may be of any materials except asbestos.

Parts of footwear may vary in shape according to the types or styles of footwear for which they are intended. They include:

(1) Parts of uppers (e.g., vamps, toecaps, quarters, legs, linings . . . . (Emphasis added.) HRL 953219 dated February 9, 1993, sets forth our position with respect to the tariff classification of similar footwear imported with removable liners. It reads in pertinent part as follows:

In HRL 086055 dated January 9, 1990, Customs ruled that certain removable neoprene boot liners were classifiable under heading 6117, HTSUS, as other made- up clothing accessories. Classification under Chapter 64, HTSUS, as footwear or as parts of footwear was not appropriate because the boot liners did not possess outer soles and they were presumed not to remain in the boot after the foot was removed. Further, the same rationale was applied in HRL 952170 dated December 23, 1992, to classify certain textile booties under heading 6117, HTSUS, rather than under Chapter 64, HTSUS, as footwear or as parts of footwear. Noting that the instant liners, unlike the liners involved in HRL's 086055 and 952170, are not suitable for use other than with the shoes for which they were intended, it is our position that they are classifiable under subheading 6406.10.9040, HTSUSA, as parts of footwear, uppers and parts thereof, other than stiffeners, other, other, of textile materials other than cotton of man-made fibers. The textile category number is 669. The rationale for this position is further explained as follows: For tariff purposes a provision for parts of an article covers products solely or principally used as a part of such articles. The shoe "frames" involved are unfinished or incomplete footwear without the liners. These liners are designed for use with these shoe "frames" and are necessary for their completion. Further, even though the liners are capable of being worn outside of the shoe, they are designed for and will be principally used with these shoe "frames." Consequently, the liner imported separately qualifies for classification as parts of footwear for tariff purposes.

The liners or booties which were the subject of HRL's 952170 and 086055 can be distinguished from the instant liners in that they are used with finished or completed footwear. Unlike the liners in issue, they are not necessary to complete the footwear. They are accessories.

HOLDING:

Style MM 229-X imported with one liner is classifiable under subheading 6402.91.70, HTSUS. The applicable rate of duty for this provision is 90 cents per pair plus 37.5% ad valorem.

Style MM 229-X imported with two liners constitutes a set classifiable under subheading 6402.91.70, HTSUS.

Each liner, if imported separately, is classifiable under subheading 6406.10.9040, HTSUSA, as parts of footwear, uppers and parts thereof, other than stiffeners, other, other, of textile materials other than cotton, of man-made fibers. The textile category number is 669.

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
Commercial Rulings Division