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HQ 950631


March 23, 1991

CLA-2 CO:R:C:M 950631 NLP

CATEGORY: CLASSIFICATION

TARIFF NO.: 6402.91.50

Ms. Margaret Bayer
Pagoda Trading Company Inc.
1950 Craig Road
St. Louis, MO. 63146

RE: NY 866668; children's boots; accessories and reinforcements; loosely attached appurtenances; HRL 082661; NYRL 809843; NYRL 812613

Dear Ms. Bayer:

This is in response to Pagoda's request for reconsideration of NY 866668, dated September 16, 1991, which dealt with the classification of a girl's boot under the Harmonized Tariff Schedule of the United States (HTSUS). A sample was submitted for our examination.

FACTS:

The subject sample is a girl's boot, style number I1411G. It is approximately 9 inches in height and has a pile lining which is exposed at the top of the shaft for about three-fourths of an inch. The upper is made of poly vinyl chloride (PVC) and has two strips that wrap around the back portion of the shaft. The strips are four and five inches in length and one-half of an inch in width. They are made of PVC with a ribbon trim stitched on top.

NY 866668, dated September 16, 1991, stated that the strips were firmly attached to the boot and they were sewn into the seam on the boot's shaft. NY 866668 held that these strips constituted an integral part of the external surface area and that they were not loosely attached appurtenances. As a result, the strips were counted in determining the external surface area of the boot's upper and the boot was classified in subheading 6402.91.50, HTSUS, which provides for other footwear with outer soles and uppers of rubber or plastics, other footwear, covering the ankle, other, 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.

ISSUE:

Whether the strips are loosely attached appurtenances and therefore not to be added back in when measuring the external surface area of the boot's upper.

LAW AND ANALYSIS:

Headquarters Ruling Letter (HRL) 082661, dated October 17, 1988, dealt with the classification of a women's plastic sandal that had a plaid textile bow sewn to the upper. The issue was whether loosely attached appurtenances were included in the measurement of the external surface area pursuant to subheading 6402.99.15, 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..., other. In HRL 082661 we stated that:

...subheading 6402.99.15, HTSUSA, does not require that everything that was excluded under Note 4(a) (to chapter 64) must be added back in determining classification under that provision. If there was meant to be an add back requirement, the superior heading could have read, "including all accessories or reinforcements excluded by reason of Note 4(a)". Instead, the heading states accessories and reinforcements "such as" those mentioned in note 4(a).

This ruling goes on to state that loosely attached appurtenances are not part of the upper at all and therefore, are not added back in when measuring the external surface area of the upper. HRL 082661 held that the plaid bow sewn onto the upper was a loosely attached appurtenance and the shoe was classified in subheading 6402.99.15, HTSUS.

If the strips on the sample boot are considered loosely attached appurtenances, they are not counted when determining the external surface area of the upper. The external surface area of the upper would then be less than 10 percent textile and over 90 percent rubber or plastics. However, if the strips on the boot are deemed accessories or reinforcements, they are considered when determining the external surface area of the boot's upper. The external surface area of the upper, including the strips and the pile liner at the top of the boot, would be over 10 percent textile and under 90 percent rubber or plastics.

It is your position that the strips on the subject boot are loosely attached appurtenances and should not be included when measuring the external surface area of the boot's upper. We disagree. New York Ruling Letter (NYRL) 809843, dated August 1, 1984, and NYRL 812613, dated March 20, 1985, dealt with the issue of whether textile bows attached to the uppers of shoes were excluded when determining the external surface areas of the uppers. NYRL 809843 classified a patent vinyl dress shoe with a textile fabric bow attached to its upper by means of a rivet. This ruling stated the following:

In the past, the Customs Service has ruled that items such as strips, buttons, pompoms, etc. which are attached to the upper by rivets, gluing, stitching (tacked) at one or two points and which serve as decorations are not to be treated as part of the exterior surface area of the upper if their removal does not render the shoe unserviceable as footwear.

The bow was considered a decoration as its removal did not render the footwear unserviceable. As a result, the bow was excluded in determining the classification of the shoe's upper.

NYRL 812613, dated March 20, 1985, dealt with the classification of an infant's plastic dress shoe with a decorative synthetic fabric bow at the top of the vamp. This ruling stated that since the decorative fabric bow was attached by gluing and a few stitches, and could be removed without rendering the shoe unserviceable, it was considered a loosely attached appurtenance. Therefore, the bow was not counted in determining the external surface area of the upper.

On the instant boot, the points of attachment of each strip are integral with the seams which hold the boot's upper together. Removal of these seams would damage the structural integrity of the upper at these points, thereby making the boot unserviceable. Therefore, the strips are considered an integral part of the boot and are firmly attached to the boot.

As a result, it is our position that the strips are not loosely attached appurtenances and they are not excluded when determining the external surface area of the boot's upper. When the strips and the pile liner at the top of the boot are added together, they comprise more than 10 percent of the external surface area of the upper. Thus, the boot's upper is less than 90 percent rubber or plastics and the boot is classified in subheading 6402.91.50, HTSUS.

HOLDING:

The boot is classified in subheading 6402.91.50, HTSUS. NY 866668 is hereby affirmed.

Sincerely,

John Durant, Director
Commercial Rulings Division

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