HQ 954879: Footwear; Ankle support; "Power Sock;" Sets; Essential character; Quota; GRI 5; HRL's 086611, 952295, 953219

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                            HQ 954879

                         October 29, 1993

CLA-2  CO:R:C:M  954879 DFC

CATEGORY:  Classification

TARIFF NO.:  6402.91.90;  6307.90.99  

John B. Pellegrini, Esq. 
Ross & Hardies 
Park Avenue Tower
65 East 55th Street 
New York, New York  10022-3219  

RE:  Footwear; Ankle support; "Power Sock;" Sets;  Essential     
character; Quota; GRI 5; HRL's 086611, 952295, 953219  

Dear Mr. Pellegrini:

     In a letter dated August 19, 1993, on behalf of Avia Group
International, Inc., you inquired as to the tariff classification
under the Harmonized Tariff Schedule of the United States
(HTSUS), of a combination of articles consisting of footwear and
an ankle support.  A half-pair of shoes, style 990, a "Power
Sock," and advertising material were submitted for examination.  

FACTS:

     The footwear is a man's over-the ankle athletic shoe with an
upper of rubber and plastics and a unit molded bottom of rubber/
plastics.  The unit-molded bottom overlaps the upper by 1/4 inch
or more around the entire perimeter of the shoe and is considered
a foxing-like band for tariff purposes.  

     Style 990 will be imported and sold at retail with the
"Power Sock."  The "Power Sock" is made of neoprene covered with
man-made fiber.  It is worn over the ankle and heel and is
designed to enhance ankle support and stability.  Although
intended to be worn in conjunction with the "Power Sock", style
990 is complete in and of itself and can be worn without it. 

     The combination will be sold in a shoe box.  The "Power
Sock" will be presented in a plastic pouch.  Both articles as
well as the plastic pouch, will be produced in China.  




                               -2-

 ISSUE:

     Whether the footwear and the "Power Socks" imported together
constitute a set for tariff purposes?  

     What is the tariff classification of the "Power Sock" as a
separate article? 

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.  

     We will deal first with the issue of whether the footwear
and the "Power Socks" imported together constitutes a set for
tariff purposes.  GRI 3, HTSUS, which is relevant to a
determination of this issue reads in pertinent part, as follows: 

     3.   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:  

          (a)  The heading which provides the most specific
               description shall be preferred to headings
               providing a more general description.  However,
               when two or more headings each refer to part only
               of the materials or substances contained in mixed
               or composite goods . . . those headings are to be
               regarded as equally specific in relation to those
               goods, even if one of them gives a more complete
               or precise description of the goods. 

          (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. 





                               -3-

     GRI 3(b), HTSUS, is germane because GRI 3(a), HTSUS, cannot
be used in determining classification.  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).  EN (X) to GRI 3(b) at p. 4, provides that the term "goods
put up in sets for retail sale" mean goods which: 

     (a)  consist of at least two different articles which are
          prima facie classifiable in different headings . . . ; 

     (b)  consist of products or articles put up together to meet
          a particular meed 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).  

     It is our opinion that the pair of shoes, style 990,
imported with a pair of "Power Socks" meet the criteria set forth
above for being considered a set for tariff purposes.  See
Headquarters Ruling Letter (HRL) 953219 dated February 9, 1993. 
Since we have concluded that the shoes and "Power Socks"
constitute a set for tariff purposes, it is necessary to
determine which component of the set imparts the essential
character thereto.  EN (VIII) to GRI 3(b) at page 4, reads as
follows: 
           
          [t]he 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. 

     It is our opinion that the essential character of the 
footwear and "Power Socks" combination is imparted by the shoes. 
The "Power Socks" or ankle supports perform a subordinate
function to that of the shoes which provide a walking or running
surface which is the primary function of the combination. 
  
     In view of the foregoing, it is our position that the
footwear and "Power Socks" combination constitute a set
classifiable under subheading 6402.91.90, HTSUS, which provides
for other footwear with outer soles and uppers of rubber or
plastics, covering the ankle, other, other, valued over $12/pair. 
valorem.  





                               -4- 

     We will now deal with the classification of the "Power
Socks" or ankle supports.  The possible classifications of this
item are under heading 9021, HTSUS, as orthopedic appliances or
under subheading 6307.90, HTSUS, as other made-up textile
articles. 

     EN 90.21 reads, in pertinent part, at page 1497, as follows:

                   (1) ORTHOPAEDIC APPLIANCES 
 
  These are appliances for: 

(i)  Preventing or correcting bodily deformities; or
(ii) Supporting or holding organs following an illness or
     operation. 

   They include: 

     *              *              *              * 
(6)  Orthopaedic footwear, having an enlarged leather stiffener
     which may be reinforced with a metal or cork frame, made
     only to measure. 

(7)  Special insoles, made to measure. 

     *              *              *              * 

(9)  Orthopaedic foot appliances (talipes appliances, leg braces,
     with or without spring support for the foot, surgical boots,
     etc.). 

     *              *              *              * 

     The heading does not include:
    
     *              *              *              * 

     (b)  Simple protectors or devices designed to reduce
          pressure on certain parts of the foot . . . 

     *              *              *              * 

     (d)  Mass-produced footwear the inner soles of which have
          been simply arched to alleviate flat-footedness
          (Chapter 64).  

     A reading of the above-cited portion of EN 90.21, persuades
us that the "Power Socks" are closer in nature and type to the
excluded products and thus are not within the ambit of heading
9021, HTSUS.  


                               -5-

     With respect to classification of the "Power Socks" under
heading 6307, HTSUS, as other made up articles, including dress
patterns, EN 63.07 at page 868, is especially instructive.  It
reads in pertinent part, as follows:  

     This 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. 

     It includes, in particular: 

     *              *              *              *              


     (27) Support articles of the kind referred to in Note 1(b)
          to Chapter 90 for joints (e.g., knees, ankles, elbows
          or wrists) or muscles (e.g. , thigh muscles), other
          than those falling in other headings of Section XI.

     In view of the foregoing, it is our opinion that the "Power
Sock" imported separately is classifiable under subheading
6307.90.99, HTSUS.  Merchandise classifiable under subheading
6307.90.99, HTSUS, is not subject to quota restraints or visa
requirements.  See HRL 952295 dated January 5, 1993.

     The tariff treatment of the plastic pouch is governed by GRI
5, HTSUS, which reads as follows: 

     5.   In addition to the foregoing provisions, the following
          rules shall apply in respect of the goods referred to
          therein: 

          (a)  Camera cases, musical instrument cases, gun cases,
               drawing instrument cases, necklace cases and
               similar containers, specially shaped or fitted to
               contain a specific article or set of articles,
               suitable for long-term use and entered with the
               articles for which they are intended, shall be
               classified with such articles when of a kind
               normally sold therewith.  This rule does not,
               however, apply to containers which give the whole
               its essential character; 

          (b)  Subject to the provisions of rule 5(a) above,
               packing materials and packing containers entered
               with the goods therein shall be classified with
               the goods if they are of a kind normally used for
               packing such goods.  However, this provision does
               not apply when such packing materials or packing
               containers are clearly suitable for repetitive
               use.  

                               -6- 
 
     With respect to the tariff treatment of the plastic pouch,
you have informed us that it is of flimsy construction, not
specially shaped or fitted to contain a specific article or set
of articles, and is not suitable for repetitive use.   

     Based on your description of the plastic pouch, it is our
opinion that GRI 5(a), HTSUS, is inapplicable because the pouch
is neither specially shaped or fitted to contain a specific
article or set of articles nor is it suitable for long term use.

     The tariff treatment of the pouch is governed by GRI 5(b),
HTSUS, noting that is clearly not suitable for repetitive use. 
Consequently, the pouch is considered packing material pursuant
to GRI 5(b), HTSUS, and classifiable with its contents.  See HRL
086611 dated May 17, 1990.  

HOLDING: 

     The footwear and the "Power Socks" imported together
constitute a set for tariff purposes. 

     The footwear and "Power Socks" combination are dutiable at
the rate of 20% ad valorem under subheading 6402.91.90, HTSUS.

     The "Power Socks" imported separately are dutiable at the
rate of 7% ad valorem under subheading 6307.90.99, HTSUS. 

     The plastic pouch is considered packing material pursuant to
GRI 5(b), HTSUS, and is classifiable with its contents.  


                                   Sincerely,



                                   John Durant, Director 
                                   Commercial Rulings Division