CLA-2 OT:RR:CTF:TCM H008845 GC
Mr. John Pellegrini, Esq.
McGuire Woods, LLP
1345 Avenue of the Americas
New York, New York 10105-0106
RE: Tariff classification of women’s bowling shoes from China
Dear Mr. Pellegrini:
This is in response to your letter dated March 20, 2007, on behalf of your client, H.H. Brown Shoe Company, Inc., in which you request reconsideration of New York Ruling Letter (NY) H89667, dated April 9, 2002.
We have since reviewed NY H89667 and find it to be distinguishable from this present case on the basis that the bowling shoes subject to NY H89667 were imported under different condition than the bowling shoes at issue here. Per a phone conversation with a member of my staff on May 29, 2008, we will treat your reconsideration request as a prospective ruling request on the tariff classification under the Harmonized Tariff Schedule of the United States (HTSUS) of the subject merchandise.
FACTS:
The merchandise at issue, identified as style number B998-1, consists of a pair of women’s bowling shoes, a plastic slip-on shoe cover for one of the shoes, a fabric shoe bag and a smaller “sole and heel” bag containing four interchangeable soles and four interchangeable heels.
The subject footwear is a pair of woman’s oxford-height bowling shoes with a leather upper and six-eyelet closure. Because the pair of shoes is designed for use by a right-handed bowler, the right shoe contains a rubber/plastic outer sole while the outer sole of the left shoe (the “sliding shoe”) incorporates interchangeable heels and “slide soles”, which are attached to the bottom of the shoe via a hook and loop system. You have stated that at the time of importation, a leather “slide sole” and a rubber/plastic heel will be attached to the “sliding shoe”. You propose that the footwear is properly classifiable under subheading 6403.99.90, HTSUS, which provides for: [f]ootwear with outer soles of rubber, plastics, leather or composition leather and uppers of leather: [o]ther footwear: [o]ther: [o]ther: [o]ther: [o]ther: [f]or other persons: [v]alued over $2.50/pair…”
The shoe bag is constructed from lightweight man-made woven fiber and is labeled with Dexter’s trademark on one side. The open end of the shoe bag is closed with a drawstring. When laid flat, the shoe bag measures approximately 7.5 inches wide at the open end by 16 inches long. The bag is tapered at the closed end.
The “sole and heel” bag is constructed from the same material as the shoe bag, and also like the shoe bag, is closed by a drawstring and bears the Dexter trademark on one side. On the opposite side of the “sole and heel” bag is a “slide value guide,” which allows the bowler to determine which sole and heel combination will provide the desired amount of sliding capability for the bowling surface. The “sole and heal” bag is rectangular in shape, measuring approximately 9 inches wide at the open end by 8 inches long. You propose that both the “sole and heel” bag and the shoe bag are classifiable under subheading 6307.90.98, HTSUS, which provides for: “[o]ther made up articles, including dress patterns: [o]ther: [o]ther: [o]ther…”.
The bottom of three of the “slide soles” are composed of leather, and one of the “slide sole” bottoms is composed of textile microfiber. The bottoms of three of the heels are composed of a rubber/plastics material of differing shapes and one of the heel bottoms is composed of leather. All of the interchangeable pieces are labeled with numbers that correspond with the “slide value guide” located on the “sole and heel” bag. You propose that the leather “slide soles” are classifiable under subheading 6406.99.60, HTSUS, which provides for, inter alia: “[p]arts of footwear (including uppers whether or not attached to soles other than outer soles); removable insoles, heel cushions and similar articles; gaiters, leggings, and similar articles, and parts thereof: [o]ther: [o]f other materials…”. You propose that the textile “slide sole” is classifiable under subheading 6406.99.15, HTSUS. You propose classification in subheading 6406.20.00, HTSUS, for the heels composed of rubber/plastic and subheading 6406.99.60, HTSUS, for the heel with a leather surface.
The shoe cover is to be worn on the “sliding shoe” when the wearer is not walking on the bowling surface. It is composed of rubber/plastics material. The upper of the shoe cover is red, and is covered by the Dexter logo in white. The outer sole of the shoe cover is gray, with the Dexter trademark written across the bottom in red lettering. An elastic band runs the perimeter of the opening. You propose that the shoe cover is classifiable under subheading 3926.90.99, HTSUS, which provides for: “[o]ther articles of plastics and articles of other materials of headings 3901 to 3914: [o]ther: [o]ther…”.
All of the components that make up the subject merchandise will be packaged and sold at retail together.
ISSUE(S):
Whether the shoes are classified in subheading 6403.99.90, HTSUS, which provides for: [f]ootwear with outer soles of rubber, plastics, leather or composition leather and uppers of leather: [o]ther footwear: [o]ther: [o]ther: [o]ther: [o]ther: [f]or other persons: [v]alued over $2.50/pair…”, or subheading 6405.10.00, HTSUS, which provides for: [o]ther footwear: [w]ith uppers of leather or composition leather…”
Whether the interchangeable “slide soles”, heels, shoe cover, and shoes constitute a composite good or a retail set?
What is the tariff classification under the HTSUS of the subject bags?
LAW AND ANALYSIS:
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). 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 GRIs 2 through 6 may then be applied in order.
As you have stated, the “sliding shoe” will be imported with a leather “slide sole” already attached. Because the material of the “slide sole” is the material most in contact with the ground, the “sliding shoe”, as imported, constitutes a shoe with a leather upper and a leather outer sole, classifiable in subheading 6403.99.90, HTSUS. The other shoe has a leather upper and a rubber/plastic outer sole, classifiable in subheading 6403.99.60, HTSUS.
Because each shoe that comprises the subject pair is prima facie classifiable in different subheadings, classification pursuant to GRI 1 is not possible.
GRI 3, which governs the classification of composite goods and sets, states, in pertinent part:
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:
* * *
(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.
As stated in GRI 3(b), goods put up in sets for retail sale will be classified according to the material or component that imparts the set with its essential character. In its discussion concerning “essential character,” the Harmonized Community Description and Coding System Explanatory Note (EN) to GRI 3(b) states that:
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.
Section (IX) of the EN to GRI 3 states the following:
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. (Emphasis in original)
Each shoe is a component of the subject pair. While they are not attached to each other to form a practically inseparable whole, they are adapted one to the other and are mutually complementary in a sense that the shoes are each worn on a particular foot. The shoes also perform mutually complementary functions, as one is designed to slide while the other is designed to provide traction. Moreover, it is decidedly unlikely to offer for sale one shoe without the other. Accordingly, we find that the subject pair of shoes constitutes a composite goods for the purposes of GRI 3.
In comparing the “sliding shoe” with the other shoe, it is impossible to determine which imparts the pair with its essential character by applying GRI 3(b). As such, GRI 3(c) is applied. It states:
When goods cannot be classified by reference to 3(a) or 3(b), they shall be classified under the heading which occurs last in numerical order among those which equally merit consideration.
Consequently, the pair of bowling shoes are classified in subheading 6403.99.90, HTSUS, which provides for shoes having uppers and outer soles of leather.
The pair of bowling shoes and the shoe bag also constitute a composite good within the meaning of GRI 3. Although the subject bowling shoes and shoe bag are not attached to one another, the items are mutually complementary and form a whole that would not normally be offered for sale in separate parts. Furthermore, the shoes impart the essential character. See New York Ruling Letter (NY) H89734, dated April 15, 2002; NY B88960, dated September 9, 1997. Accordingly, the bowling shoes and shoe bag are classifiable under subheading 6403.99.90, HTSUS.
You argue that the subject shoe cover, the detachable heels and soles are not components of either a composite good or a set when packaged with the bowling shoes, and should thus be classified separately. A review of various websites indicates that the heels, soles and shoe cover are sold separately. As such, we agree that the merchandise is not a composite good because the components do not form a whole which would not normally be offered for sale in separate parts. See EN (IX) to GRI 3(b).
A determination of whether the detachable heels and soles and shoe cover become components of a set when packaged with the bowling shoes is guided by EN (X) to GRI 3(b), which states, in pertinent part:
For the purposes of this Rule, the term “goods put up in sets for retail sale” shall be taken to mean goods which:
consist of at least two different articles which are, prima facie, classifiable in different headings…;
consist of products or articles put up together to meet a particular need or carry out a specific activity; and
are put up in a manner suitable for sale directly to users without repacking (e.g., in boxes or cases or on boards).
In your written submission, you concede that the subject merchandise satisfies the first and third criteria above. However, you argue that the detachable heels and soles packaged with the bowling shoes, shoe bag, shoe cover and “sole and heel” bag do not satisfy the second criteria listed in the EN. From the EN to GRI 3(b), you infer a requirement that the components of a set must be so related as to be clearly intended for use together or in conjunction with one another for a single purpose or activity. As support, you point to an example to the EN to GRI 3(b), in which it is stated that a bottle of spirits (heading 22.08) and a bottle of wine (heading 22.04) packaged together would not be considered a set put up for retail sale in spite of the fact that they could be packaged for the activity of imbibing and served at the same occasion. To complete your analogy, you argue that although the subject merchandise is intended to be used as footwear, the components making up the subject merchandise cannot be used together, thus precluding classification as a set put up for retail sale.
It is noteworthy that the remaining examples set forth in the EN to GRI 3(b) respectively provide that hairdressing sets and drawing kits are both considered sets put up for retail sale. Both exemplars contain components that are not used simultaneously. However, because the components that make up hairdressing sets or drawing kits are used in conjunction with one another to such a high degree, those products are considered sets.
The subject detachable heels and soles and bowling shoes are used in conjunction with each other for use as bowling footwear on different surfaces. Such a use is more specialized than as ordinary footwear, which denotes a use on virtually any surface. The user of the subject merchandise is instructed to wear the shoe cover on the “sliding shoe” when not walking on the bowling surface. The user also receives instructions (located on the “sole and heel” bag, which also stores the interchangeable components when the merchandise is not in use) concerning which “slide sole” and heel combination enables the user to slide more or less depending on the bowling surface conditions and the individual’s bowling style. All of the components of the subject merchandise are used in conjunction with each other to provide the user with the desired sliding effect while bowling. The fact that some of the components are not attached to the shoes while the user is actively participating in bowling does not mean that they are not used in conjunction with each other to perform a specific activity. As such, we find that they are goods put up in a set for retail sale. See Headquarters Ruling Letter (HQ) 964418, dated April 16, 2001; HQ 952654, dated January 27, 2003; and HQ 084712, dated August 24, 1989.
You did not submit any cost data to us, but based on the complexity of constructing footwear, we will assume for the purposes of this ruling that the bowling shoes are the most costly component. Likewise, the bowling shoes add the most bulk and weight to the set. Moreover, as they are the component of the set that is worn while bowling, the bowling shoes provide the most important role in relation to the use of the goods. Consequently, the bowling shoes impart the set with its essential character.
Accordingly, all of the aforementioned components, when imported together in the set, will be classifiable under subheading 6403.99.90, HTSUS.
HOLDING:
By application of GRI 3, the subject merchandise (style number B998-1) is classified in heading 6403, HTSUS, which provides for: “[f]ootwear with outer soles of rubber, plastics, leather or composition leather and upper of leather”. The merchandise is specifically provided for in subheading 6403.99.9065, which provides for: “[f]ootwear with outer soles of rubber, plastics, leather or composition leather and upper of leather: Other footwear: Other: Other: Other: Other: For other persons: Valued over $2.50/pair, Other: Other: For women: Other.” The column one, general rate of duty is 10 percent ad valorem.
Duty rates are provided for your convenience and subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the World Wide Web at www.usitc.gov.
A copy of this ruling letter should be attached to the entry documents filed at the time the goods are entered. If the documents have been filed without a copy, this ruling should be brought to the attention of the CBP officer handling the transaction.
Sincerely,
Gail A. Hamill, Chief
Tariff Classification and Marking Branch