CLA-2 CO:R:C:M 089328 DFC
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.
-2-
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.
-3-
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.
-4-
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
-5-
"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.
-6-
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
6cc NY Seaport
1cc James Sheridan
1cc Ted Rauch
1cc John Durant
1cc Legal Reference