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HQ W968135




October 3, 2006

CLA-2 RR:CTF:TCM W968135 BtB

CATEGORY: CLASSIFICATION

TARIFF NO.: 6404.19.3515

Port Director
U.S. Customs and Border Protection
Port of Atlanta
4341 International Parkway
Atlanta, GA 30354

RE: Internal Advice #06-006; Classification of BrightFeet™ Lighted Slippers

Dear Port Director:

This is in reference to your correspondence, dated February 15, 2006, in which you forwarded a request for internal advice from counsel on behalf of Boston Ideas LLC (“Boston Ideas”) pursuant to section 177.11(b)(2) and 177.11(b)(3) of the Customs and Border Protection (“CBP”) Regulations (19 C.F.R. §§177.11(b)(2) and 177.11(b)(3)).

At issue is the tariff classification of BrightFeet™ Lighted Slippers (also identified herein as the “slippers” or the “slippers at issue”) from China under the Harmonized Tariff Schedule of the United States Annotated (“HTSUSA”). It is our understanding that the slippers at issue are the subject of several current transactions at the ports of Atlanta, Savannah, and Charleston.

FACTS:

BrightFeet™ Lighted Slippers are closed-toe, open-heeled house slippers. According to Boston Ideas, the soles are composed of thermoplastic rubber and the uppers are composed of cotton terry cloth. The soles of the slippers weigh more than 10 percent of each slipper’s overall weight. The slippers have light and weight sensors in them that activate LED light bulbs, embedded in the toes, when the slippers are worn in a sufficiently dark area. Boston Ideas states that the bulbs in each slipper are angled upward and illuminate an area 20-25 feet in front of the wearer when worn in a sufficiently dark area. Each slipper is powered by two lithium batteries contained in a compartment on its inner side. The slippers are advertised are being “Comfortable in the day / Convenient at night.”

See http://www.brightfeetslippers.com/content/view/20/37/ . Advertising also describes them as: “The comfortable slippers with sensor activated nightlights. Lights an area 20-25 feet in front of you!”

It is our understanding that, in several entries through the ports of Atlanta, Savannah, and Charleston, Boston Ideas classified the slippers at issue in subheading 6404.19.3015, HTSUSA, which provides for: “Footwear with outer soles or rubber, plastics, leather or composition leather and uppers of textile materials: Footwear with outer soles of rubber or plastics: 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: Other, House slippers: Covering the ankle.” At the time of entry, the rate of duty on merchandise classified in this subheading was 12.5% ad valorem.

Additionally, it is our understanding that after the above entries were made (but had not liquidated), Boston Ideas, through its Customs broker, filed Supplemental Information Letters (“SIL’s”) on the several entries mentioned above at the Port of Atlanta. The SIL’s request that the entries be amended to reflect classification of the merchandise in subheading 8513.10.4000, HTSUSA, which provides for: “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: Other.” The Post Summary Adjustment coversheets and the cover letter from the Customs broker actually request that the entries be amended so that slippers are classified in subheading 8513.0040, HTSUSA. As this subheading does not exist, reference to it is in error. Because the separate letters filed with the SIL’s clearly indicate that the intended subheading of the amendment is subheading 8513.10.4000, HTSUSA, we have disregarded the error on the coversheets and cover letter from the Customs broker. At the time of entry, the rate of duty on merchandise classified in subheading 8513.10.4000, HTSUSA, was 3.5% ad valorem. It is our understanding that the Port of Atlanta has not yet taken action on these SIL’s.

The slippers at issue are marketed as “BrightFeet™ Lighted Slippers.” See http://www.brightfeetslippers.com . This name appears on the product’s box, company website, etc. The trademark used to designate the goods, word mark “BRIGHTFEET” (USPTO Registration No. 78553858) is protected for international class 25 goods, clothing, footwear, headgear (specifically on “slippers”). This mark is not registered on nightlights, portable lights, or similar type of goods. Despite the clear commercial designation of the product, in its request for internal advice, Boston Ideas does not use the product’s actual name. Instead, Boston Ideas refers to and describes the slippers as “Brightfeet nightlights.” In this request, Boston Ideas asserts that the slippers are classified in heading 8513, HTSUSA, as portable nightlights, by application of General Rule of Interpretation 3(b), further discussed below.

ISSUE:

What is the classification of BrightFeet™ Lighted Slippers?

LAW AND ANALYSIS:

Classification under the HTSUSA is made in accordance with the General Rules of Interpretation (“GRI”). GRI 1 provides, in part, that classification decisions are to be "determined according to the terms of the headings and any relative section or chapter notes." In the event that goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRI may then be applied, in order.

The Harmonized Commodity Description and Coding System Explanatory Notes (“EN”) constitute the official interpretation of the Harmonized System at the international level (for the 4 digit headings and the 6 digit subheadings) and facilitate classification under the HTSUSA by offering guidance in understanding the scope of the headings and GRI. While neither legally binding nor dispositive of classification issues, the EN provide commentary on the scope of each heading of the HTSUSA and are generally indicative of the proper interpretation of the headings. CBP believes the EN should always be consulted. See T.D. 89-80, 54 Fed. Reg. 35127-28 (Aug. 23, 1989).

A product's classification is determined by first looking to the headings and section or chapter notes. See Orlando Food Corp. v. United States, 140 F.3d 1437 (Fed. Cir. 1998). “Only after determining that a product is classifiable under the heading should the court look to the subheadings to find the correct classification for the merchandise." Id. The two headings at issue for classification of the BrightFeet™ Lighted Slippers are: heading 6404, HTSUSA, which provides for: “Footwear with outer soles or rubber, plastics, leather or composition leather and uppers of textile materials” and heading 8513, HTSUSA, which provides for: “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.”

BrightFeet™ Lighted Slippers consist of two individual components, a slipper and a portable electric lamp. The articles are described by both heading 6404 and heading 8513, HTSUSA, as the articles are house slippers, as well as, portable electric lamps. Because the articles are prima facie classifiable under two or more headings, they cannot be classified according to GRI 1.

In pertinent part, GRI 2(b) provides that any reference in a heading to a material or substance shall be taken to include a reference to mixtures or combinations of that material or substance with other materials or substances. However, GRI 2(b) adds that the classification of goods consisting of more than one material or substance shall be according to the principles of rule 3. Accordingly, GRI 3 is utilized when, by application of GRI 2(b), a good consists of materials or substances which are prima facie classifiable under two or more headings.

GRI 3(a) states that when goods are prima facie classifiable under two or more headings, classification shall be effected as follows:

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 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.

In this instance, headings 6404 and 8513, HTSUSA, are equally specific in relation to one another. As we cannot classify these goods pursuant to GRI 3(a), we turn to GRI 3(b), which states:

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.

To determine whether the merchandise constitutes a composite good, we look to Explanatory Note IX to GRI 3(b), which states in pertinent part:

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.

In the case at hand, the two components are attached to form an inseparable whole. The portable electric lamp is actually housed in the slipper. Consequently, the article is a composite good. Thus, we must determine which component imparts the essential character to the merchandise. Explanatory Note (EN) VIII to GRI 3(b) states:

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.

Boston Ideas asserts that the portable electric lamp in the BrightFeet™ Lighted Slippers gives the slippers their essential character. In support of this assertion, Boston Ideas states that while the slippers have “the outward form of house slippers,” it is the portable electric lamp that provides them with their principal feature and purpose. Boston Ideas posits:

Because the BrightFeet nightlights were specifically designed as a type of light and are marketed and likely to be purchased as a lighting apparatus, the lighting attributes of the BrightFeet cannot be said to have a secondary functionality. Indeed, the slipper function of these devices is secondary to that of the lighting apparatus because, when worn for its intended purpose, the slipper functions merely as a vehicle for the lighting apparatus, thereby enabling hands-free maneuverability in the dark.

We do not agree with Boston Idea’s assertion or the above statements in support of it. We also find Boston Idea’s reference to the slippers as “Brightfeet nightlights,” instead of by the product’s actual name to be misleading. The product at issue is correctly identified as “BrightFeet™ Lighted Slippers.” This is the name under which the slippers are marketed and the name on which the Boston Idea’s website for the product is based. See http://www.brightfeetslippers.com/ . Additionally, the “BRIGHTFEET” mark is registered on slippers. If the products were a lighting apparatus, we would expect that the trademark would be registered for protection in an international class appropriate for that type of product.

We dispute Boston Ideas’ claim that the slippers are marketed and likely purchased as a “lighting apparatus.” We have reviewed the BrightFeet™ Lighted Slippers website store, as well as the website of every retailer listed on the BrightFeet™ Lighted Slippers website. http://www.brightfeetslippers.com/content/view/17/30/ . On none of these websites were the articles marketed as lights, lighting apparatus, or similar articles. In all cases, the slippers were being marketed as “lighted slippers,” “slippers with headlights,” or “Lighted Slippers to Light Your Path.”

As their name indicates, BrightFeet™ Lighted Slippers are slippers. The articles have the physical form of a slipper and are available in standard slipper sizes, coming in three women’s sizes (Small-Medium-Large) and three men’s sizes (Small-Medium-Large). Sizing is not a characteristic typically associated with articles of heading 8513, HTSUSA.

We recognize that the sensor activated nightlight in the slipper is an important part of the product. The nightlight supplies the added functionality that may induce a consumer to purchase the product instead of a slipper without a nightlight. Still, the nightlight remains a secondary feature to the slipper. This determination is consistent with those made in Headquarters Ruling Letter (“HQ”) 954878, dated November 22, 1993, and HQ 087336, dated August 28, 1990, both pertaining to the classification of slippers incorporating battery-operated lights built into their toes. As advertising reflects, the slippers are “comfortable in the day.” They can be worn as ordinary slippers in lighted conditions or if their nightlights become broken or their lithium batteries run out of power. Conversely, if the slipper component of the product were to become unusable/unwearable, we find it unlikely that the consumer would continue to use the product as a nightlight. In addition, the slipper component of the product predominates in size, weight, and cost/value of materials. In light of the above, we find that the slipper components of the BrightFeet™ Lighted Slippers give the articles their essential character. Consequently, the slippers are classified in heading 6404, HTSUSA.

In its request for internal advice, Boston Ideas compares the BrightFeet™ Lighted Slippers to a certain model of massaging slippers that was the subject of HQ 967179, dated October 15, 2004 (specifically “model VSW1G”), and which was classified in heading 9019, HTSUSA, as massage apparatus pursuant to GRI 3(b). We do not find this comparison persuasive due to differences in construction and functionality of the respective products. We also point out that the correctness of HQ 967179 is currently under review by this office.

Considering that the BrightFeet™ Lighted Slippers are open-heeled slippers with soles of rubber weighing more than 10 percent by weight of each slipper, Boston Ideas’ classification of the articles under subheading 6404.19.3015, HTSUSA, a provision covering certain house slippers covering the ankle, was incorrect.

Considering their construction and composition, the slippers are specifically provided for by subheading 6404.19.3515, HTSUSA, and are thus classified in that provision.

HOLDING:

BrightFeet™ Lighted Slippers are classified in subheading 6404.19.3515, HTSUSA, which provides for: “Footwear with outer soles or rubber, plastics, leather or composition leather and uppers of textile materials: Footwear with outer soles of rubber or plastics: 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: Other, House slippers.”

The entries for which internal advice was requested were entered between July 6, 2005 and October 12, 2005. The general (column one) rate of duty under the 2005 HTSUSA was 37.5% ad valorem. Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUSA and the accompanying duty rates are provided on the world wide web at www.usitc.gov.

You are to mail this decision to the internal advice applicant no later than 60 days from the date of this letter. On that date, the Office of Regulations and Rulings will make the decision available to CBP personnel, and to the public on the CBP Home Page on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and other means of public distribution.

Sincerely,


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