United States International Trade Commision Rulings And Harmonized Tariff Schedule
faqs.org  Rulings By Number  Rulings By Category  Tariff Numbers
faqs.org > Rulings and Tariffs Home > Rulings By Number > 1994 HQ Rulings > HQ 0954856 - HQ 0954937 > HQ 0954878

Previous Ruling Next Ruling



HQ 954878


November 22, 1993

CLA-2 CO:R:C:M 954878 DFC

CATEGORY: CLASSIFICATION

TARIFF NO.: 6402.99.15; 6404.19.35

District Director of Customs
U.S. Customs Service
1205 Royal Lane
Dallas/Fort Worth, Texas 75261

RE: Protest 5501-93-100156; Footwear; Slippers, lighted; Composite goods; Essential character; GRI 3(b); HRL 087336

Dear Sir:

The following is our decision regarding the request for further review of Protest 5501-93-100156 concerning the tariff classification under the Harmonized Tariff Schedule of the United States (HTSUS), of certain lighted slippers produced in Thailand. Samples were submitted for examination.

FACTS:

The two samples are one-band "beachcombers," a type of footwear, with rubber/plastic (R-P) bottoms which are over one inch thick. Both samples have a battery-operated light built into the front of the toe area. Both have a hidden velcro-like closure to join the two sides of the straps on top of the footwear which are used to hold the footwear to the foot of the wearer. Both are labelled "Nite Walkers" on a plastic piece at the heel. The "adult" size, labelled "NW-100," in black, has an upper/strap entirely of a thick layer of R-P with a textile backing. The child's slipper has an upper/strap entirely of textile; it has no style name or number.

The entries covering these slippers were liquidated on January 29, February 12, and February 26, 1993, at the rate of 37.5% ad valorem under subheading 6404.19.35, HTSUS. The protest was timely filed on April 23, 1993. Protestant asserts that these slippers are dutiable at the rate of 25% ad valorem under subheading 8513.10.20, HTSUS, or at the rate of 6% ad valorem under subheading 6402.19.30, HTSUS, or at the rate of 12.5% ad valorem under subheading 6404.19.30, HTSUS.

ISSUE:

Are the lighted slippers classifiable as portable electric lamps in heading 8513, HTSUS, or are they footwear classifiable under chapter 64, HTSUS?

What component imparts the essential character to the lighted slippers?

LAW AND ANALYSIS:

The competing provisions are as follows:

8513 Portable electric lamps designed to function by their own source of energy (for example, dry batteries, storage batteries, magnetos), other than lighting equipment of heading 8512: parts thereof:
Lamps:
8513.10.20 Flashlights . . .

6402 Other footwear with outer soles and uppers of rubber or plastics:
Other footwear:
6402.99 Other:
Having uppers of which over 90 percent of the external surface area (including any accessories or reinforcements such as those mentioned in note 4(a) to this chapter) is rubber or plastics
(except footwear having a foxing or a foxing-like band applied or molded at the sole and overlapping the upper and except footwear designed to be worn over, or in lieu of, other footwear as a protection against water, oil, grease or chemicals or cold or inclement weather:
6402.99.15 Other . . .

6404 Footwear with outer soles of rubber, plastics, leather or composition leather and uppers of textile materials:
Footwear with outer soles of rubber or plastics:
6404.19 Other:
Footwear with open toes or open heels; footwear of the slip-on type, that is held to the foot without the use of laces or buckles or other fasteners, the foregoing except footwear of subheading
6404.19.20 and except footwear having a foxing or foxing-like band wholly or almost wholly of rubber or plastics applied or molded at the sole and overlapping the upper:
Less than 10 percent by weight of rubber or plastics:
6404.19.30 Other . . .

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 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.

Inasmuch as the lighted slippers are composite goods [slippers plus flashlights], their classification is governed by GRI 3(b), HTSUS, which reads, 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:

(b) Mixtures, composite goods consisting of different materials or made up of different components . . . 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.

Both styles of lighted slippers are prima facie classifiable under heading 8513, which provides for portable electric lamps, or under heading 6402, HTSUS (other footwear with outer soles and uppers of rubber or plastics), for style NW-100 or under heading 6404, HTSUS (footwear with outer soles of plastics, leather or composition leather and uppers of textile materials) for the child's style.

The Harmonized Commodity Description and Coding System Explanatory Notes to the HTSUS (EN), although not dispositive, should be looked to for the proper interpretation of the HTSUS. See, 54 FR 35128 (August 23, 1989). EN (IX) to GRI 3(b) at page 4, reads as follows:

(IX) 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.

Composite goods are classifiable as if they consisted of the component which gives them their essential character. 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 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 observation that the essential character of the lighted slippers is derived from the slippers themselves rather than from the built-in lights. Clearly, the slippers predominate in "bulk, quantity, weight or value" over the built-in lights. The principal function of the composite articles (lighted slippers) is to provide a walking surface. The built-in lights are merely an "extra feature" and their function is secondary to that of the slippers.

Also, EN 85.13 which is relevant here, states at page 1351, that "[t]he lamps of this heading include . . . (6) . . . [c]omposite articles composed of a lamp or torch and a pen, screwdriver, key ring, etc., remain classified here only if the main function of the whole is the provision of light." Clearly, the main function of the lighted slippers is for walking rather than for light.

In view of the foregoing, it is our opinion that inasmuch as the essential character of the lighted slippers is derived from the slippers, classification under heading 8513, HTSUS, as portable electric lamps, is precluded.

We note that in Headquarters Ruling Letter 087336 dated August 8, 1990, Customs held that "Disney Mickey Footlights Slippers" were classified under chapter 64, HTSUS, as footwear. Those slippers had "headlights" that were lit via two penlight batteries and a large Mickey Mouse face. The crucial point is that they were "useable and saleable" as slippers without those features added. The instant merchandise was likewise quite "useable and saleable" as footwear before the light was added. We also note that chapter 64, HTSUS, excludes "Toy Footwear," which can at least be argued to apply to the "Footlight Slippers." but no specific exclusion from chapter 64, HTSUS, applies even in the vaguest way to the lighted slippers in issue.

Adult Size model NW-100

The protest cites 4 entries. Copies of two were included in the file. The protest and Customs Form 6432 refers to two styles, NW-100 and NW-200. However, the two entries submitted indicated importations only of the NW-100. The entries' entire description is "Lighted Slippers Model NW-100." None of the descriptive information required by section 141.89, Customs Regulations, (19 CFR 141.89), was included in the file.

Per the notation on the invoice for one of the entries, Customs took a shipment sample, circled the "model NW-100," and marked the invoice "TEX. upper, Rubber sole." Customs Laboratory report dated December 8, 1992, stated that "[t]he upper is composed wholly of textile (Terry Cloth)." These two descriptions do not match the sample labelled NW-100 submitted by you. That sample has an upper the external surface area of which is clearly plastic. Consequently, Model NW-100 is classifiable as claimed under subheading 6402.99.15, HTSUS, which provides for other footwear with outer soles and uppers of rubber or plastics, other footwear, having uppers of which over 90 percent of the external surface area (including any accessories or reinforcements such as those mentioned in note 4(a) to this chapter) is rubber or plastics (except footwear having a foxing or a foxing-like band applied or molded at the sole and overlapping the upper and except footwear designed to be worn over, or in lieu of, other footwear as a protection against water, oil, grease or chemicals or cold or inclement weather, other.

Child's slipper

The child's slipper has a textile upper. The R-P bottom is obviously more than 10% by weight of the entire slipper. Consequently, it is classifiable under subheading 6404.19.35, HTSUS, which provides for footwear with outer soles of rubber, plastics, leather or composition leather and uppers of textile materials, footwear with outer soles of rubber or plastics, other, other.

HOLDING:

The lighted slippers are classifiable under chapter 64, HTSUS, as footwear.

Model NW-100 is dutiable at the rate of 6% ad valorem under subheading 6402.99.15, HTSUS.

The child's slipper is dutiable at the rate of 37.5% ad valorem under subheading 6404.19.35, HTSUS.

The protest should be allowed in part for Model NW-100 and denied in part for the child's slipper. In accordance with Section 3A(11)(b) of Customs Directive 099 3550, dated August 4, 1993, Subject: Revised Protest Directive, this decision, together with the Customs Form 19, should be mailed by your office to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with the decision must be accomplished prior to mailing of the decision. Sixty days from the date of the decision the Office of Regulations and Rulings will take steps to make the decision available to Customs personnel via the Customs Rulings Module in ACS and the public via the Diskette Subscription Service, Lexis, Freedom of Information Act and other public access channels.

Sincerely,

John Durant, Director

Previous Ruling Next Ruling

See also: