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