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HQ 956963

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March 21, 1995

CLA-2 CO:R:C:M 956963 DFC

CATEGORY: CLASSIFICATION

TARIFF NO.: 7326.90.85

Peter W. Klestadt, Esq.
Erik D. Smithweiss, Esq.
Grunfeld, Desiderio, Lebowitz and Silverman 245 Park Avenue
New York, NY 10167-0002

RE: Footwear; Parts of footwear; Pullovers, studded; Shoe spikes with straps; Composite goods; Essential Character; U.S. v. Willoughby Camera Stores; Gallagher & Ascher Company v. U.S.; HRL's 084088, 087541, 955987; DD 898471 revoked

Dear Messrs. Klestadt and Smithweiss:

In a letter dated August 25, 1994, on behalf of ContiTech Group, you asked that District Ruling (DD) 898471 issued to them on June 7, 1994, by the District Director of Customs, at New Orleans, Louisiana, be revoked. That ruling concerned the tariff classification under the Harmonized Tariff Schedule of the United States (HTSUS), of studded pullovers for shoes and boots. Samples were submitted for examination. 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(Customs Modernization) of the North American Free Trade Agreement Implementation Act (Pub. L. 103-182, 107 Stat. 2057), (hereinafter section 625), notice of the proposed revocation of DD 898471 was published February 15, 1995, in the Customs Bulletin, Volume 29, Number 7.

FACTS:

Samples of two types of studded pullovers, identified as "Spiky" and "Spiky Plus," were submitted for examination. They are designed to provide slip protection on ice and snow. Metal spikes are set in tough flanges, which are pressed into a contoured, sandal-like rubber harness that pulls on and off over any type of shoe or boot by means of a heel tab. The rubber harness merely holds the metal spikes in place. The harness does not cover the sole or upper or provide protection against water, oil, grease or chemicals or cold or inclement weather. "Spiky," has four metal spikes in the toe area positioned under the ball of the wearers foot. "Spiky Plus," has four metal spikes in the toe area as well as two in the heel area. You indicate that the weight of the rubber is on average 84.5% of the total weight of the article. Further, that the value of the rubber is on average 82.8% of the total value of the article.

In DD 898471, the District Director ruled that studded pullovers represented by the samples are classifiable under subheading 6406.99.90, HTSUS, which provides for parts of footwear, other, of other materials, other. The current applicable rate of duty for this provision is 14.4% ad valorem.

You claim that the studded pullovers are classifiable under one of the following subheadings:

Subheading 6402.99.15, [now 6402.99.18] HTSUS, which provides for other footwear with outer soles and uppers of rubber or plastics, other footwear, 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), other. The applicable rate of duty for this provision is 6% ad valorem.

Subheading 6406.20.00, HTSUS, which provides for outer soles and heels, of rubber or plastics. The applicable rate of duty for this provision is 4.8% ad valorem.

Subheading 4016.99.05, HTSUS, which provides for other articles of vulcanized rubber other than hard rubber, other, household articles not elsewhere specified or included. The applicable rate of duty for this provision is 3.4% ad valorem.

Subheading 4015.90.00, HTSUS, which provides for articles of apparel and clothing accessories (including gloves), for all purposes, of vulcanized rubber other than hard rubber, other. The applicable rate of duty for this provision is 4.8% ad, valorem.

ISSUE:

Are the studded pullovers considered parts of footwear for tariff purposes?

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]."

The Harmonized Commodity Description and Coding System Explanatory Notes to the HTSUS (EN), although not dispositive, or legally binding, provide a commentary on the scope of each heading of the HTSUS, and are generally indicative of the proper interpretation of the HTSUS. See T.D. 89-80, 54 FR 35127, 35128 (August 23, 1989).

The General EN's to Chapter 64, HTSUS, provide, in pertinent part, as follows:

With certain exceptions [not here applicable] this Chapter covers, under headings 64.01 to 64.05, various types of footwear (including overshoes) irrespective of their shape and size, the particular use for which they are designed, their method of manufacture or the materials of which they are made.

For the purposes of this Chapter, the term 'footwear' does not, however, include disposable foot or shoe coverings of flimsy material (paper, sheeting of plastics, etc.) without applied soles. These products are classified according to their constituent material.

(A) Footwear may range from sandals with uppers consisting simply of adjustable laces or ribbons to thigh-boots (the uppers of which cover the leg and thigh, and which may have straps, etc., for fastening the uppers to the waist for better support). The Chapter includes:

(7) Footwear obtained in a single piece, particularly by moulding rubber or plastics by carving from a solid piece of wood.

(9) Overshoes worn over other footwear; in some cases, they are heel-less.

(C) . . . . . . . . ..

In the case of footwear made in a single piece (e.g.,clogs) without applied soles, no separate outer sole is required; such footwear is classified with reference to the constituent material of its lower surface.

(D) For the purposes of the classification of footwear in this Chapter, the constituent material of the uppers must also be taken into account. The upper is the part of the shoe or boot above the sole. However, in certain footwear with plastic moulded soles or in shoes of the American Indian moccasin type, a single piece of material is used to form the sole and either the whole or part of the upper, thus making it difficult to identify the demarcation between the outer sole and the upper. In such cases, the upper shall be considered to be that portion of the shoe which covers the sides and top of the foot. The size of the uppers varies very much between different types of footwear, from those covering the foot and the whole leg, including the thigh (for example, fishermen's boots), to those which consist simply of straps or thongs (for example, sandals).

You state that the above cited EN's support your claim that the studded pullovers are footwear for the purposes of classification under headings 6401 through 6405, HTSUS, for the following reasons:

1. The cited EN's indicate that headings 6401 through 6405, HTSUS, cover articles made of a single piece of rubber which are worn over other shoes. Both "Spiky" pullovers satisfy this description and thus fall within the meaning of "footwear."

2. Classification under headings 6401 through 6405, HTSUS, does not require that the footwear have an applied sole with the exception of certain textile footwear. See Note 1(a) to Chapter 64, HTSUS. The EN's, provide in relevant part,that "in the case of footwear made in a single piece (e.g., clogs without applied soles, no separate outer sole is required; such footwear is classified with reference to the constituent material of its lower surface. For purposes of classification, the "outer sole" of the "Spiky" is its lower surface.

3. With respect to the upper, the EN's make no distinction between elastic straps on footwear made in a single piece, and straps that are attached to a separate bottom or sole component. The "Spiky" pullovers contain rubber straps which cover the side and top of the foot near the toe, and cover the side and upper ankle at the heel. These straps satisfy the description of an "upper."

4. In T.D. 93-88, published in the Customs Bulletin on November 17, 1993, Customs defined the term "outer sole" as "that part of the footwear (other than a separate heel) in contact with the ground when in use. If it has no separate 'outer sole,' e.g., it has a one-piece clog bottom, the material of the 'outer sole' is the material of the shoes' lower surface." The term "upper" is defined in T.D. 93-88 as "the part of the shoe above the separate sole or that portion of the shoe which covers the sides and top of the foot if there is no separate sole. An 'upper' can cover the whole leg, thigh, hips, and chest (e.g., fishermen's chest waders) or can consist simply of straps, laces or thongs (e.g., Roman sandals)." Thus, based on the foregoing definitions, the studded pullovers are "footwear" for tariff purposes.

5. Customs has previously classified similar merchandise as complete footwear in headings 6401 through 6405, HTSUS. For example, in HRL 084088 dated June 13, 1989, Customs classified a "super sole foot gripper" under subheading 6404.19.35, HTSUS. This item was described as follows:

This is a footwear item that is worn strapped to the bottom of a boot or shoe in order to provide better traction on soft surfaces. The foot gripper has an upper that consists of two one-inch wide textile straps with Velcro-type closures. It has a rubber outsole with 1/4 inch high, molded-in cylinder shaped nubs that have protruding metal screw heads/studs which have been screwed in. A rubber insole with a non-skid, textured face has been stitched onto the rubber outsole.

Customs concluded that the "super sole footgripper" cannot be classified as a part of footwear because it is a complete shoe. In addition, it was noted that the foot grippers are worn over other footwear and following General EN A(9) to Chapter 64, HTSUS, supra, are overshoes and, therefore must be classified as footwear.

CUSTOMS POSITION

We agree that classification under headings 6401 through 6405, HTSUS, does not require that the footwear have an applied sole with the exception of certain textile footwear. See Note 1(a) to Chapter 64, HTSUS.

The studded pullovers in issue are clearly "less than" footwear because most of the sole and almost all of the shoe or boot will still be seen and in use when this item is worn and even the little foot covering that it supplies is simply the result of the maker's not being able to find a way to keep the removable spikes securely attached and maintained in position while using thinner straps. The straps' only reason for being is obviously to assist the spikes. It appears to be your position that everything worn over a shoe or boot is an "overshoe." We disagree with this position. Items like removable riding spurs, whose thin straps, securing the spur, do cover some of the wearer's shoe, but are clearly not "overshoes."

You maintain that HRL 084088 dated June 13, 1989, holding that similar merchandise viz., a "super sole foot gripper" is classifiable as footwear under subheading 6404.19.35, HTSUS, controls the classification of the "Spiky" pullovers. We disagree. The "super sole foot gripper" is considered to be complete footwear under that ruling, because it had an outsole and an upper whereas the instant studded pullovers are "less than footwear," e.g., shoe spikes with straps. There is neither an outsole nor an upper.

STUDDED PULLOVERS ARE NOT PARTS OF FOOTWEAR

Heading 6406, HTSUS, provides, as follows:

Parts 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.

Additional U.S. Rule of Interpretation 1(c), HTSUS, provides as follows:

1. In the absence of special language or context which otherwise requires--

(c) a provision for parts of an article covers products solely or principally used as a part of such articles but a provision for 'parts' or 'parts and accessories' shall not prevail over a specific provision for such part or accessory[.]"

In the case of United States v. Willoughby Camera Stores, Inc., CCPA 322, 324, T.D. 46851 (1933), the court stated that "[i]t is a well-established rule that a 'part' of an article is something necessary to the completion of that article. It is an integral, constituent, or component part, without which the article to which it is to be joined, could not function as such.

This so-called "rule of essentiality" is not controlling in all cases. It has been held that a device may be a part of an article even though its use is optional and the article will function without it, where the device is dedicated for use upon the article, and, once installed, the article will not operate without it. See e.g., Gallagher & Ascher Company v. United States, 52 CCPA 11, C.A.D. 849 (1964).

The "Spiky" pullovers are complete and independent articles of commerce. Although worn over shoes, they are not integral, constituent, or component parts, without which the underlying shoes could not function as footwear. The "Spiky" pullovers are optional articles for use with footwear. Therefore, they are not parts of footwear for tariff purposes.

In Headquarters Ruling Letter (HRL) 955987, dated June 30, 1994, Customs stated that "[t]he term 'accessory' is not defined either in the text of the HTSUS or in the Harmonized Commodity Description and Coding System Explanatory Notes. However, an accessory, while identifiable as being intended solely or principally for use with a specific article, is generally not necessary to enable a good with which it is used to fulfill its intended function. Accessories are of secondary importance, not essential in and of themselves. However, they must somehow contribute to the effectiveness of the principal article, they must facilitate its use or handling, widen its range of uses, or improve its operation."

In view of the foregoing, it is our position that the subject studded pullovers are "accessories" because:

1. they are intended to be used solely with footwear;

2. they are not necessary to enable the footwear with which they are used to fulfill its intended function; and

3. they are not essential in and of themselves, but do contribute to the effectiveness of the footwear in that they improve its performance [traction] on ice.

STUDDED PULLOVERS ARE NOT CLASSIFIABLE AS OUTER SOLES OF RUBBER OR PLASTICS

We agree that "Spiky" pullovers are not provided for in heading 6406, HTSUS, as either removable insoles, heel cushions and similar articles or as gaiters, leggings and similar articles, and parts thereof.

However, you claim that studded pullovers, if not footwear, are properly classifiable under subheading 6406.20.00, HTSUS, which provides for outer soles and heels, of rubber or plastics. The basis for this claim is found in HRL 087541, dated October 11, 1991, wherein Customs held that certain shoe spikes were classifiable as parts of footwear under subheading 6406.99.90, HTSUS. In reaching this conclusion Customs erroneously stated that "[t]he shoe spikes are outer soles that are similar to footwear parts that are listed in this provision. The article which was the subject of HRL 087541 looked, due to its design, more like a half sole [plus the very unusual spikes and straps] than the one in issue. However, there is no question that neither are known to the trade and public as "outer soles." The fact that other items in heading 6406, HTSUS, which are not parts, are removable is irrelevant, despite HRL 087541, to the fact that permanent attachment is a very strong element in both the trade and common meaning of "outer soles." When the fact that it is also much "more than" the ordinary "outer sole," in having spikes and about as much strapping over and around the foot as under it, and that it is much "less than" one, in that large parts of the outer sole of the shoe it is used with will be in contact with the ground in use, "outer sole" is clearly an inappropriate name.

STUDDED PULLOVERS ARE CLASSIFIABLE UNDER HEADING 7326, HTSUS

Inasmuch as the studded pullovers are composite goods, 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.

The studded pullovers are prima facie classifiable under subheading 4016.99.05, HTSUS, as other articles of vulcanized rubber other than hard rubber, other, household articles not elsewhere specified or included; or under subheading 4015.90.00, HTSUS, as articles of apparel and clothing accessories, of vulcanized rubber other than hard rubber, other; or under subheading 7326.90.85, HTSUS, as other articles of iron or steel, other, other, other.

Composite goods are classifiable as if they consisted of the material or 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.

The rubber portion of the pullovers exceeds the metal spikes in terms of bulk, weight and probably value. However, the metal spikes perform a crucial function in providing traction for shoes on ice and snow. Thus, we are unable to determine whether the metal spikes or the rubber portion of the pullovers imparts the essential character thereto. Consequently, following GRI 3(c), classification under subheading 7326.90.85, HTSUS, is appropriate as ". . . the heading which occurs last in numerical order among those which equally merit consideration."

HOLDING:

The "Spiky" pullovers are dutiable at the rate of 5.1% ad valorem under subheading 7326.90.85, HTSUS.

DD 898471 is hereby revoked. In accordance with section 625, this ruling will become effective 60 days after its publication in the Customs Bulletin. Publication of rulings or decisions pursuant to section 625 does not constitute a change of practice or position in accordance with section 177.10(c)(1), Customs Regulations (19 CFR 177.10(c)(1)).

Sincerely,

John Durant, Director
Commercial Rulings Division

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See also:

• Tariff No.: 4015.90.00 - Articles of apparel and clothing accessories, excluding gloves, of vulcanized rubber other than hard rubber
• Tariff No.: 4016.99.05 - Household articles nesoi, of noncellular vulcanized rubber other than hard rubber
• Tariff No.: 6402.99.18 - Footwear w/outer soles & uppers of rubber or plastics, nesoi, n/cov. ankle, w/ext. surf. of uppers o/90% rubber or plastics, nesoi
• Tariff No.: 6404.19.35 - Footwear w/outer soles of rub./plast. & upp. of textile, nesoi, w/open toes/heels or slip-on type, 10% or more by wt. of rubb./plastic
• Tariff No.: 6406.20.00 - Outer soles and heels for footwear, of rubber or plastics
• Tariff No.: 6406.99.90 - Parts of footwear, nesoi; removable insoles, heel cushions, etc; gaiters, leggings, etc, & pts thereof; all the foregoing of materials nesoi
• Tariff No.: 7326.90.85 - Iron or steel, articles, nesoi