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HQ 089328


November 14, 1991

CLA-2 CO:R:C:M 089328 DFC

CATEGORY: CLASSIFICATION

TARIFF NO.: 9607.19.00

M. Barry Levy, Esq.
Law Offices
Sharretts, Paley, Carter & Blauvelt, P.C. Sixty-Seven Broad Street
New York, N.Y. 10004

RE: Reconsideration of New York Ruling Letter (NYRL) 857820; "Zip-'Ems"; "Zip-Ons"; Fasteners, slide; NYRL 089328 affirmed

Dear Mr. Levy:

In a letter dated May 9, 1991, and in a supplemental submission dated October 17, 1991, on behalf of Brookside Enterprises Inc., you requested that this office reconsider the result reached in New York Ruling Letter (NYRL) 857820 dated December 4, 1990, concerning the tariff classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA), of articles referred to as "Zip-'Ems" (formerly known as "Zip-Ons).

FACTS:

The "Zip-'Ems" are used as fastening devices for sneakers. You describe the merchandise as follows:

The product involved consists of two fastener components, a pair of shoelaces, two matching clips of plastic and metal, and a sheet of paper stickers, all packaged together for retail sale. Each fastener component is composed of a #8 gauge zipper with a metal slide and plastic teeth which are mounted on man-made textile fabric. Nine metal grommets, spaced so as to align with sneaker eyelets, run along each side of the fastener components, parallel to the zipper track. The matching clips consist of two pieces designed to be snapped together by means of corresponding posts, pins, and holes. On the front of each clip is a circular badge which may be decorated with one of the licensed or non- licensed designs provided on the included sheet of paper stickers. The shoe laces are of man-made textile materials.

The "Zip-'Ems" product is affixed to a pair of sneakers by first removing any shoelaces which may be threaded through the sneakers' eyelets. Next, the fastener components are inserted between the tongue and the overlaying side panels of each sneaker upper so that the grommets on the fastener components and the eyelets on the sneakers are aligned, with any excess portion of the fasteners extending over the base of the tongue towards the front of the sneaker. The fastener components are then laced to the sneakers through the grommets and eyelets with the supplied shoelaces. The clips are then assembled to the fastener components by inserting the plastic posts on the front pieces through the first extra pair of grommets, puncturing the textile fabric with the pins, and securing them in place with the back pieces. Any material left below the clips is cut off with an ordinary pair of scissors. Finally, a pair of the paper stickers may be adhered to the badges on the front of the clips.

In NYRL 857820, Customs held that the merchandise was dutiable at the rate of 15 percent ad valorem under subheading 9607.19.00, HTSUSA, as slide fasteners and parts thereof, other, fitted with chain scoops of plastic.

You maintain that the "Zip-'Ems" are properly classifiable under subheading 6406.10.60, HTSUSA, as parts of footwear, uppers and parts thereof, other than stiffeners, other, of rubber or plastics, with duty at the rate of 5.3 percent ad valorem. In the alternative you suggest classification of the product under subheading 6406.10.90, HTSUSA, as parts of footwear, uppers and parts thereof, other than stiffeners, other, other, other. The applicable rate of duty for this provision is 9 percent ad valorem.

ISSUE:

Can the "Zip-'Ems" be considered parts for tariff purposes?

What component imparts the essential character to the product?

LAW AND ANALYSIS:

Classification of goods under the HTSUSA 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 heading 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.

You regard the product as a combination of components, i.e., laces, ornaments and zippers which form a wholly different product, viz., "Zip-'Ems" into which the individual identities of the various components are "merged." Following GRI 1 you submit that while there are other provisions of the schedule which describe the individual components of the product the provision for parts of footwear in heading 6406, HTSUSA, is the only one which describes the entire product.

An examination of the sample compels the conclusion that the various components of the product retain their separate identities and clearly do not merge to form a wholly different product. They remain separable items, i.e., zippers, shoelaces, pins, badges, plastic and metal clips and paper stickers.

GRI 2(b), HTSUSA, which is relevant here provides in pertinent part that ". . . [t]he classification of goods consisting of more than one material or substance shall be according to the principles of rule 3."

Inasmuch as the product is composed of more than one material, GRI 3 is applicable. Its relevant portions read 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 . . . or to part only of the items in a set put up for retail sale, 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.

The Harmonized Commodity Description and Coding System Explanatory Notes (EN) to the HTSUSA, although not dispositive, should be looked to for the proper interpretation of the HTSUSA. See 54 FR 35128 (August 23, 1989). GRI 3(b) is relevant here because GRI 3(a) cannot be used in determining classification of the product. EN (X) to GRI 3(b) at page 4 reads as follow:

(X) For the purposes of this Rule, the term "goods put up in sets for retail sale" shall be taken to 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 need 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 components of the "Zip-'Ems" are "goods put up in sets for retail sale" because this set: (1) consists of at least two different articles; (2) which are prima facie classifiable in different headings; (3) consists of articles put up together to carry out a specific activity; and (4) the articles are put up in a manner suitable for sale directly to users without repacking.

Since we have concluded that the various components of the "Zip-'Ems" constitute a set for tariff purposes, it is necessary to determine what component of the set imparts the essential character thereto. EN VIII to GRI 3(b) at page 4 reads as follows:

(VIII) 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, its bulk, quantity, weight or value, or by the role of the constituent material in relation to the use of the goods.

It is our observation that the essential character of the "Zip-'Ems" is imparted by the zipper. The rationale for this conclusion is based on the role of the zipper in relation to the use of the product. The role of the zipper is the predominant feature of the product in that it is the device which operates to open and close the footwear. Clearly, the

"Zip-'Ems" product is functionally a slide fastener (zipper) as implied by its name and it is our position that the product is classifiable under subheading 9607.19.0020, HTSUSA, as slide fasteners and parts thereof, other, fitted with chain scoops of plastic.

You cite Headquarters Ruling Letter (HRL) 064997 dated October 9, 1980, in support of your claim for classification as parts of footwear. The merchandise involved, called a Zip N' Jog device, consisted of a piece of supported vinyl sheet which had been die cut to a V-shape, and a zippered fastener which was cemented and sewn to the vinyl. This product which you claim is similar in design and identical in function to the "Zip-'Ems" was classified as parts of footwear. This ruling is not controlling as to the classification of the instant product because it was decided under the Tariff Schedules of the United States (TSUS), which did not contain the GRI's and the exclusions contained in the current tariff. For example, GRI 3(b) relating to sets and composite goods which are classifiable according to the component which gives the set or composite goods their essential character. It should be noted that under the HTSUSA, the Zip N' Jog device most likely would be classified as a slide fastener based on the rationale that it is a composite good which derives its essential character from the slide fastener (zipper).

ANALYSIS OF NYRL 089328

Note 2 to Chapter 64, HTSUSA, provides that "[f]or the purposes of heading 6406, the expression 'parts' does not include pegs, boot protectors, eyelets, boot hooks, buckles, ornaments, braid, laces, pompons or other trimmings (which are to be classified in their appropriate headings) or buttons or other goods of heading 9606."

EN (g) to heading 64.06 at page 880 reads in pertinent part as follows:

The heading also excludes:

(g) . . . slide fasteners (zippers) (heading 96.07).

The position expressed in NYRL 089328 was that zippers, laces and ornaments are excluded from classification as parts of footwear in heading 6406 by Note 2 to chapter 64 and EN (g) to heading 64.06. Further, it was determined that the essential character of the product was imparted by the zipper which required classification under heading 9607 as slide fasteners.

We agree that the product was properly classified under heading 9607. However, it is our view that reference to Note 2 to chapter 64 was not necessary. Clearly, EN (g) to heading 64.06 excludes the set which we have found to be slide fasteners from classification as parts of footwear.

HOLDING:

The "Zip-'Ems" are not considered parts for tariff purposes.

They are a set in which the slide fastener (zipper) imparts the essential character to the set.

The classification of the "Zip-'Ems" in NYRL 857820 is affirmed.

The "Zip-'Ems" product is classifiable as slide fasteners and parts thereof, other, with chain scoops of plastic under subheading 9607.19.0020, HTSUSA. The applicable rate of duty is 15 percent ad valorem.

Your sample is being returned under separate cover.

Sincerely,

John Durant,Director
Commercial Rulings Division


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