CLA-2 OT:RR:CTF:FTM H242873 GaK
Russell Kirkland
Benchmark Brands
5250 Triangle Parkway Suite 200
Norcross, GA 30092
RE: Revocation of NY N222103, and Modification of NY K86082 and NY L85061; classification of various foot sleeves
Dear Mr. Kirkland:
On July 18, 2012, U.S. Customs and Border Protection (“CBP”) issued to you New York Ruling Letter (“NY”) N222103. CBP also issued NY K86082, dated May 20, 2004, and NY L85061, dated June 15, 2005, pertaining to similar products. The rulings pertain to the tariff classification under the Harmonized Tariff Schedule of the United States (“HTSUS”) of various foot sleeves. In NY N222103, NY K86082, and NY L85061, the National Commodity Specialist Division (“NCSD”) classified various foot sleeves under subheading 6115.96.90, HTSUS. For the reasons described in this ruling, we hereby revoke NY N222103, and modify NY K86082, and NY L85061.
On June 7, 2012, pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. 1625(c)(1), as amended by section 623 of Title VI, notice of the proposed action was published in the Customs Bulletin Vol. 51, No. 23. No comments were received in response to this notice.
FACTS:
In NY N222103, CBP described the merchandise as follows:
Item 40332, High Arch Sleeve; Item 40333/40335, Forefoot Camisole and Bunionette; Item 40334, Stay and separate; and Item 40352, Arch Sleeve . . . constructed of 84% nylon and 16% spandex knit fabric. These items are used to add comfort to the foot while walking.
The foot sleeves are designed to provide cushioning and may not be worn without socks or shoes to cover them. They cover various area of the feet or toes for the purposes of cushion only. There is no fabric covering on the toes, heels, or ankles. After importation into the United States, gel is adhered to the sleeve on the foot pad, ball of the foot, little toe, or the bunion area, before it is sold to the ultimate consumer. The importer argues that the merchandise is not socks or hosiery, or intended to be a substitute for them. Pictures of each style are provided below:
Item 40332
Item 40333
Item 40335
Item 40334
Item 40352
ISSUE:
Whether the subject merchandise is classifiable under heading 6307, HTSUS, or under heading 6115, HTSUS.
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 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 be applied in order.
The HTSUS headings under consideration in this case are as follows:
6307 Other made up articles, including dress patterns.
* * *
6115 Panty hose, tights, stockings, socks and other hosiery, including graduated compression hosiery (for example, stockings for varicose veins) and footwear without applied soles, knitted or crocheted.
Note 7 to Section XI, HTSUS provides as follows:
For the purposes of this Section, the expression “made up” means:
Cut otherwise than into squares or rectangles;
Produced in the finished state, ready for use (or merely needing separation by cutting dividing threads) without sewing or other working (for example, certain dusters, towels, table cloths, scarf squares, blankets);
Cut to size and with at least one heat-sealed edge with a visibly tapered or compressed border and the other edges treated as described in any other subparagraph of this Note, but excluding fabrics the cut edges of which have been prevented from unravelling by hot cutting or by other simple means;
Hemmed or with rolled edges, or with a knotted fringe at any of the edges, but excluding fabrics the cut edges of which have been prevented from unravelling by whipping or by other simple means;
Cut to size and having undergone a process of drawn thread work;
Assembled by sewing, gumming or otherwise (other than piece goods consisting of two or more lengths of identical material joined end to end and piece goods composed of two or more textiles assembled in layers, whether or not padded);
Knitted or crocheted to shape, whether presented as separate items or in the form of a number of items in the length.
Heading 6115, HTSUS, is an eo nomine provision. In Camelback Products, LLC v. United States, 649 F.3d. 1361, 1364 – 1365 (Fed Cir. 2011), the U.S. Court of Appeals for the Federal Circuit described eo nomine provisions as follows: “[w]ith regard to assessing an imported article pursuant to GRI 1, we consider a HTSUS heading or subheading an eo nomine provision when it describes an article by a specific name.” Carl Zeiss, Inc. v. United States, 195 F.3d 1375, 1379 (Fed. Cir. 1999).
The HTSUS does not define “socks” or “hosiery.” The Essential Terms of Fashion, by Charlotte Mankey Calasibetta, 1986, at 197, defines “sock” as a “[k]nitted covering for the foot and part of the leg” and defines “hose” as “[k]nitted item of wearing apparel covering the foot and leg” at 87. We agree with the importer that the merchandise is not socks or hosiery, or intended to be a substitute. The merchandise does not sufficiently cover the area of foot or toes. Therefore, the merchandise is properly classified in heading 6307, HTSUS, specifically under subheading 6307.90.98, HTSUS, which provides for “[o]ther made up articles, including dress patterns: Other: Other: Other: Other: Other.”
This decision is consistent with other CBP rulings on substantially similar merchandise. See e.g., NY H88106, dated February 19, 2002 (heel protector classified in heading 6307, HTSUS); NY G84345, dated November 28, 2000 (toe pad classified in heading 6307, HTSUS), and NY K86082, dated May 20, 2004 (foot pads classified in heading 6307, HTSUS).
HOLDING:
Pursuant to GRIs 1 and 6, the various foot sleeves are classified under heading 6307, HTSUS, specifically under subheading 6307.90.98, HTSUS, which provides for “[o]ther made up articles, including dress patterns: Other: Other: Other: Other: Other.” The 2017 general, column one, rate of duty is 7%, ad valorem.
Duty rates are provided for your convenience and are 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/tata/hts/.
EFFECTS ON OTHER RULINGS:
NY N222103, dated July 18, 2012 is hereby revoked. NY K86082, dated May 20, 2004 (Style 0A394) and NY L85061, dated June 15, 2005 (Styles 9205, 9414, 3876, and 9284) are hereby modified.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division