Reconsideration of NY N062498; Classification of the Slipper Genie

HQ H076736 February 1, 2010 CLA-2: OT:RR:CTF:TCM H076736 TNA CATEGORY: Classification TARIFF NO.: 6405.20.9060 Ms. Susan Kohn Ross, Esq. Mitchell, Silberberg & Knupp, LLP 11377 West Olympic Boulevard Los Angeles, CA 90064-1683 RE: Reconsideration of NY N062498; Classification of the Slipper Genie Dear Ms. Ross: This letter is in response to your request dated September 11, 2009, on behalf of your client, Evriholder Products, LLC (“Evriholder”), for reconsideration of New York Ruling Letter (“NY”) N062498, dated June 2, 2009, which classified the Slipper Genie under subheading 6405.20.9060, Harmonized Tariff Schedule of the United States (“HTSUS”), as “Other footwear: With uppers of textile materials: Other, Other: For women.” We have reviewed NY N062498 and found it to be correct. For the reasons set forth below, we hereby affirm NY N062498. FACTS: The merchandise at issue is the “Slipper Genie.” It comes in the shape of a slipper. Its uppers are made primarily of textile and contain a vamp made of foam-backed cotton attached to the bottom part of the upper with binding tape. This bottom part is made of foam-backed cotton and a thin rigid polyethylene insert and contains the hook side of a hook-and-loop Velcro fastener. The slipper’s outer sole contains the loop side of the Velcro fastener sewn to a microfiber chenille duster. The sole’s length, width, and shape correspond exactly to the bottom of the slipper’s upper. In NY N062498, U.S. Customs and Border Protection (“CBP”) classified the Slipper Genie under subheading 6405.20.9060, HTSUS, “Other footwear: With uppers of textile material: Other, Other: For women.” ISSUE: Whether the Slipper Genie should be classified under heading 6307, HTSUS, as an “Other made up article,” or under heading 6405, HTSUS, as “Other footwear”. LAW AND ANALYSIS: Classification of goods under the HTSUS is governed by the General Rules of Interpretation (GRI). GRI 1 provides that classification shall be determined according to the terms of the headings of the tariff schedule and any relative section or chapter notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs may then be applied. GRI 3(b) states that: 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: … Mixtures, composite goods consisting or 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. Note 1 to Chapter 64, HTSUS, states, in pertinent part: This chapter does not cover:… (b) Footwear of textile material, without an outer sole glued, sewn or otherwise affixed or applied to the upper (section XI); The headings at issue are as follows: 6307 Other made up articles, including dress patterns 6405 Other footwear The Harmonized Commodity Description and Coding System Explanatory Notes (EN’s) constitute the official interpretation of the Harmonized System. While not legally binding on the contracting parties, and therefore not dispositive, the EN’s provide a commentary on the scope of each heading of the Harmonized System and are thus useful in ascertaining the classification of merchandise under the system. CBP believes the EN’s should always be consulted. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989). EN IX to GRI 3(b) states that: 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… As a general rule, the components of these composite goods are put up in a common packing. EN VIII to GRI 3(b) provides: 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 EN to heading 6307, HTSUS, states, in pertinent part, that: This heading covers made up articles of any textile material which are not included more specifically in other headings of Section XI or elsewhere in the Nomenclature. It includes, in particular: (1)     Floor-cloths, dish-cloths, dusting cloths and similar cleaning cloths (whether or not impregnated with a cleaning preparation, but excluding those of heading 34.01 or 34.05). The EN to heading 6405, HTSUS, states, in pertinent part, that: Subject to Notes 1 and 4 to this Chapter, this heading covers all footwear having outer soles and uppers of a material or combination of materials not referred to in the preceding headings of this Chapter.   The heading includes in particular:… (3)   Footwear with outer soles of wood, cork, twine or rope, paperboard, furskin, textile fabric, felt, nonwovens, linoleum, raffia, straw, loofah, etc. The uppers of such footwear may be of any material. In the present case, the Slipper Genie consists of two parts: an upper made primarily of textile, and a sole made of a microfiber chenille duster. As a result, it consists of different components that are prima facie classifiable in different headings, and is therefore classifiable under GRI 3(b). Although the two parts of the Slipper Genie can be separated from each other, they are designed to fit one another. Their dimensions and shape correspond to each other and each contains one half of the hook-and-loop fastener. The two parts are sold together as one unit and are imported as such. As a result, the Slipper Genie is a composite good within the meaning of GRI 3(b). In addition to the guidance provided by EN VIII to GRI 3(b), there have also been several court decisions on “essential character” for purposes of GRI 3(b). These cases have looked to the role of the constituent materials or components in relation to the use of the goods to determine essential character. Structural Industries v. United States, 360 F. Supp. 2d 1330, 1337-1338 (CIT 2005); Conair Corp. v. United States, 29 C.I.T. 888 (2005); Home Depot USA, Inc. v. United States, 427 F. Supp. 2d 1278, 1295-1356 (CIT 2006), aff’d 491 F.3d 1334 (Fed. Cir. 2007). In the present case, Evriholder argues that the slipper’s chenille duster sole imparts the good’s essential character because the Slipper Genie is a cleaning tool rather than footwear. The company argues that the sole’s chenille microfiber is a popular cleaning material, and that the upper is simply a convenient way of using the sole. Furthermore, the company states, the Slipper Genie can be used just as well for cleaning if the upper is removed, and could be used for that purpose even if worn on the hand. Upon examination of the submitted samples, however, we find that the uppers are sturdy enough to withstand repeated use as footwear, and are designed to withstand such use. The attachment of the chenille microfiber sole to an upper, so that a cleaning product can be used as footwear, is the Slipper Genie’s innovation. Given the number of cleaning products that are designed for hand-held use, it is unlikely that a consumer would purchase the Slipper Genie and use it as a hand-held product. Furthermore, the subject merchandise is named the “Slipper Genie,” thereby putting emphasis on the product’s character as footwear. We have reviewed Evriholder’s website and other websites that sell the subject merchandise. On each site, the ability to wear the Slipper Genie on the foot was the product’s dominant feature. Furthermore, we find HQ W98135, dated October 3, 2006, to be applicable. There, we classified Bright Feet Lighted Slippers, which were slippers containing lights activated when the slippers were worn in darkness, according to their footwear component. We do not find Evriholder’s attempt to distinguish this opinion persuasive. As a result, we find that the Slipper Genie’s footwear component imparts the good’s essential character. We find that Note 1 to Chapter 64, HTSUS, does not exclude the subject merchandise from that chapter because the outer sole is “otherwise affixed” to the upper by means of the hook and loop fasteners. Therefore, the Slipper Genie is classified in heading 6405, HTSUS, and specifically in subheading 6405.20.9060, as “Other footwear: With uppers of textile materials: Other, Other: For women.” HOLDING: Under the authority of GRI 3(b), the Slipper Genie is provided for in heading 6405, HTSUS. Specifically, it is classified in subheading 6405.20.9060, HTSUS, which provides for “Other footwear: With uppers of textile materials: Other, Other: For women.” As such, the duty rate is 12.5% ad valorem. Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the internet at www.usitc.gov/tata/hts/. EFFECT ON OTHER RULINGS: NY N062498, dated June 2, 2009, is AFFIRMED. Sincerely, Gail A. Hamill, Chief Tariff Classification and Marking Branch