CLA-2 CO:R:C:M 954878 DFC
District Director of Customs
U.S. Customs Service
1205 Royal Lane
Dallas/Fort Worth, Texas 75261
RE: Protest 5501-93-100156; Footwear; Slippers, lighted;
Composite goods; Essential character; GRI 3(b); HRL
The following is our decision regarding the request for
further review of Protest 5501-93-100156 concerning the tariff
classification under the Harmonized Tariff Schedule of the United
States (HTSUS), of certain lighted slippers produced in Thailand.
Samples were submitted for examination.
The two samples are one-band "beachcombers," a type of
footwear, with rubber/plastic (R-P) bottoms which are over one
inch thick. Both samples have a battery-operated light built
into the front of the toe area. Both have a hidden velcro-like
closure to join the two sides of the straps on top of the
footwear which are used to hold the footwear to the foot of the
wearer. Both are labelled "Nite Walkers" on a plastic piece at
the heel. The "adult" size, labelled "NW-100," in black, has an
upper/strap entirely of a thick layer of R-P with a textile
backing. The child's slipper has an upper/strap entirely of
textile; it has no style name or number.
The entries covering these slippers were liquidated on
January 29, February 12, and February 26, 1993, at the rate of
37.5% ad valorem under subheading 6404.19.35, HTSUS. The protest
was timely filed on April 23, 1993. Protestant asserts that
these slippers are dutiable at the rate of 25% ad valorem under
subheading 8513.10.20, HTSUS, or at the rate of 6% ad valorem
under subheading 6402.19.30, HTSUS, or at the rate of 12.5% ad
valorem under subheading 6404.19.30, HTSUS.
Are the lighted slippers classifiable as portable electric
lamps in heading 8513, HTSUS, or are they footwear classifiable
under chapter 64, HTSUS?
What component imparts the essential character to the
LAW AND ANALYSIS:
The competing provisions are as follows:
8513 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
8513.10.20 Flashlights . . .
6402 Other footwear with outer soles and uppers of
rubber or plastics:
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
6402.99.15 Other . . .
6404 Footwear with outer soles of rubber, plastics,
leather or composition leather and uppers of
Footwear with outer soles of rubber or
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:
6404.19.30 Other . . .
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 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.
Inasmuch as the lighted slippers are composite goods
[slippers plus flashlights], 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
(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
Both styles of lighted slippers are prima facie classifiable
under heading 8513, which provides for portable electric lamps,
or under heading 6402, HTSUS (other footwear with outer soles and
uppers of rubber or plastics), for style NW-100 or under heading
6404, HTSUS (footwear with outer soles of plastics, leather or
composition leather and uppers of textile materials) for the
The Harmonized Commodity Description and Coding System
Explanatory Notes to the HTSUS (EN), although not dispositive,
should be looked to for the proper interpretation of the HTSUS.
See, 54 FR 35128 (August 23, 1989). EN (IX) to GRI 3(b) at page
4, reads as follows:
(IX) 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
Composite goods are classifiable as if they consisted of the
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.
It is our observation that the essential character of the
lighted slippers is derived from the slippers themselves rather
than from the built-in lights. Clearly, the slippers predominate
in "bulk, quantity, weight or value" over the built-in lights.
The principal function of the composite articles (lighted
slippers) is to provide a walking surface. The built-in lights
are merely an "extra feature" and their function is secondary to
that of the slippers.
Also, EN 85.13 which is relevant here, states at page 1351,
that "[t]he lamps of this heading include . . . (6) . . .
[c]omposite articles composed of a lamp or torch and a pen,
screwdriver, key ring, etc., remain classified here only if the
main function of the whole is the provision of light." Clearly,
the main function of the lighted slippers is for walking rather
than for light.
In view of the foregoing, it is our opinion that inasmuch as
the essential character of the lighted slippers is derived from
the slippers, classification under heading 8513, HTSUS, as
portable electric lamps, is precluded.
We note that in Headquarters Ruling Letter 087336 dated
August 8, 1990, Customs held that "Disney Mickey Footlights
Slippers" were classified under chapter 64, HTSUS, as footwear.
Those slippers had "headlights" that were lit via two penlight
batteries and a large Mickey Mouse face. The crucial point is
that they were "useable and saleable" as slippers without those
features added. The instant merchandise was likewise quite
"useable and saleable" as footwear before the light was added.
We also note that chapter 64, HTSUS, excludes "Toy Footwear,"
which can at least be argued to apply to the "Footlight
Slippers." but no specific exclusion from chapter 64, HTSUS,
applies even in the vaguest way to the lighted slippers in issue.
Adult Size model NW-100
The protest cites 4 entries. Copies of two were included in
the file. The protest and Customs Form 6432 refers to two
styles, NW-100 and NW-200. However, the two entries submitted
indicated importations only of the NW-100. The entries' entire
description is "Lighted Slippers Model NW-100." None of the
descriptive information required by section 141.89, Customs
Regulations, (19 CFR 141.89), was included in the file.
Per the notation on the invoice for one of the entries,
Customs took a shipment sample, circled the "model NW-100," and
marked the invoice "TEX. upper, Rubber sole." Customs Laboratory
report dated December 8, 1992, stated that "[t]he upper is
composed wholly of textile (Terry Cloth)." These two
descriptions do not match the sample labelled NW-100 submitted by
you. That sample has an upper the external surface area of which
is clearly plastic. Consequently, Model NW-100 is classifiable
as claimed under subheading 6402.99.15, HTSUS, which provides for
other footwear with outer soles and uppers of rubber or plastics,
other footwear, 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,
The child's slipper has a textile upper. The R-P bottom is
obviously more than 10% by weight of the entire slipper.
Consequently, it is classifiable under subheading 6404.19.35,
HTSUS, which provides for footwear with outer soles of rubber,
plastics, leather or composition leather and uppers of textile
materials, footwear with outer soles of rubber or plastics,
The lighted slippers are classifiable under chapter 64,
HTSUS, as footwear.
Model NW-100 is dutiable at the rate of 6% ad valorem under
subheading 6402.99.15, HTSUS.
The child's slipper is dutiable at the rate of 37.5% ad
valorem under subheading 6404.19.35, HTSUS.
The protest should be allowed in part for Model NW-100 and
denied in part for the child's slipper. In accordance with
Section 3A(11)(b) of Customs Directive 099 3550, dated August 4,
1993, Subject: Revised Protest Directive, this decision, together
with the Customs Form 19, should be mailed by your office to the
protestant no later than 60 days from the date of this letter.
Any reliquidation of the entry in accordance with the decision
must be accomplished prior to mailing of the decision. Sixty
days from the date of the decision the Office of Regulations and
Rulings will take steps to make the decision available to Customs
personnel via the Customs Rulings Module in ACS and the public
via the Diskette Subscription Service, Lexis, Freedom of
Information Act and other public access channels.
John Durant, Director