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HQ 957548




March 21, 1995

CLA-2: CO:R:C:M 957548

CATEGORY: CLASSIFICATION

TARIFF NO.: 7326.90.85

Ms. Leah M. Poudrier
Weissenfels, Inc.
44 Amaral Street
East Providence, R.I. 02915

RE: Footwear; parts of footwear; Shoe spikes; Essential character; composite goods; HRL 955987; U.S v. Willoughby Camera Stores; Gallagher & Ascher v. U.S.; HRL 087541 revoked

Dear Ms. Poudrier:

This is in reference to Headquarters Ruling Letter (HRL) 087541 issued to you on October 11, 1990, concerning the tariff classification under the Harmonized Tariff Schedule of the United States (HTSUS), of certain shoe spikes produced in Italy. We have reviewed that ruling issued in response to your letter of June 5, 1990, and find that it is in error. 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:

The merchandise involved is a pair of removable shoe spikes that are designed to provide traction to shoes on ice or snow. The metal studs are 3/16 inch thick and are riveted to a fluted rubber pad that serves as a partial outer sole. The rubber pad is somewhat triangular in shape with a base that is 3 inches wide and 2-1/2 inches long. The small end of the pad, which faces the wearer's shoe, splits into two rubber strips that wrap around the back of the shoe to hold the shoe spikes in place. The strips are approximately 1/2 inch wide and 8 inches long. They interlock by means of a rubber rivet which allows the spike to be adjusted in length to wrap around the wearer's shoe. The top of the pad has a 2-1/4 inch wide slot which is designed to be stretched over the toe of the wearer's shoe. The spikes are 2
designed to be positioned under the ball of the wearer's foot.

In Headquarters Ruling Letter (HRL) 087541 Customs held that the subject merchandise is classifiable under subheading 6406.99.90, HTSUS, which provides for parts of footwear, other, of other materials, other.

ISSUE:

Are the shoe spikes considered parts of footwear for tariff purposes?

LAND 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 of chapter notes, and, provided such headings or notes do not otherwise require, according to [the remaining GRI's]."

In HRL 087541, we stated that the shoe spikes do not have an upper with an applied sole. Therefore, they cannot be classified as footwear. This is inaccurate because classification under headings 6401 through 6405, HTSUS, does not require that footwear have an applied sole with the exception of certain textile footwear. See Note 1(a) to Chapter 64, HTSUS.

SHOE SPIKES 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 cover products solely or principally used as a part of such articles but does 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

3
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 article."

This so-called "rule of essentiality" is not controlling in all cases. It has been held that a device my 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 operated without it. See e.g., Gallagher & Ascher Company v. United States, 52 CCPA 11, C.A.D. 849 (1964).

The shoe spikes 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 shoe spike are optional articles for use with footwear. Therefore, they are not parts of footwear for tariff purposes.

In 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 accessary, 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 shoe spikes 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.

SHOE SPIKES ARE CLASSIFIABLE UNDER HEADING 7326, HTSUS.

Inasmuch as shoe spikes made of metal and rubber are composite goods, their classification is governed by GRI 3(b), HTSUS, which reads, as follows:

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3. When, by application of rule 2(b) or for any other reason, goods are prima facie, classifiable under tow 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 shoe spikes 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 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), as 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 shoe spikes 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 shoe spikes imparts the essential character thereto. Consequently, following GRI 3(c), HTSUS, 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 shoe spikes are dutiable at the rate of 5.1% ad valorem under subheading 7326.90.85, HTSUS.

HRL 087541 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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