United States International Trade Commision Rulings And Harmonized Tariff Schedule
faqs.org  Rulings By Number  Rulings By Category  Tariff Numbers
faqs.org > Rulings and Tariffs Home > Rulings By Number > 1993 HQ Rulings > HQ 0089874 - HQ 0112120 > HQ 0089992

Previous Ruling Next Ruling


HQ 089992


May 11, 1992

CLA-2 CO:R:C:M 089992 NLP

CATEGORY: CLASSIFICATION

TARIFF NO.: 6402.99.60

District Director
U.S. Customs Service
909 First Avenue, RM 2039
Seattle, WA 98174

RE: Protest 3001-91-100713; Infants shoes; accessories and reinforcements; loosely attached appurtenances; subheading 6402.99.15; HRL 082661; HRL 080377; HRL 088725; NYRL 809843; NYRL 812613

Dear Sir:

The following is our decision regarding the Protest and Request for Further Review No. 3001-91-100713, dated June 20, 1991. At issue is the classification of infants dress shoes under the Harmonized Tariff Schedule of the United States (HTSUS). Samples of the shoes were submitted for our examination.

FACTS:

The subject footwear is infants dress shoes that have a rubber/plastic upper and outer sole. The upper has an ornamental lace strip sewn to the top line seam of the upper. In the middle of the lace strip is a sewn-on textile ribbon with a simulated pearl.

Your office liquidated entries covering these shoes under subheading 6402.99.60, HTSUS, which provides for other footwear with outer soles and uppers of rubber or plastics, other footwear, other, other, other, valued not over $3/pair.

The importer contends that the shoes should be classified in 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.

ISSUE:

Are the subject shoes classified in subheading 6402.99.60, HTSUS, or in subheading 6402.99.15, HTSUS.

LAW AND ANALYSIS:

Subheading 6402.99.15, HTSUS, 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.

Note 4(a) to Chapter 64, HTSUS, states that:

The material of the upper shall be taken to be the constituent material having the greatest external surface area, no account being taken of accessories or reinforcements such as ankle patches, edging, ornamentation, buckles, tabs, eyelet stays or similar attachments.

In order to determine whether the subject footwear is classifiable under subheading 6402.99.15, HTSUS, we must determine whether the ornamental lace strip sewn to the top line seam of the upper should be considered to be an "accessory or reinforcement" as defined in Note 4(a) to Chapter 64, HTSUS, or a "loosely attached appurtenance". If it is considered to be an accessory or reinforcement, the external surface area of the upper (including accessories or reinforcements) is not over 90 percent rubber or plastics, then the shoes are classifiable under subheading 6402.99.60-90, HTSUS, depending on value per pair.

If the ornamental lace strip is considered to be a loosely attached appurtenance, the external surface area of the upper (including accessories or reinforcements) is over 90 percent rubber or plastics, then the shoe is classifiable under subheading 6402.99.15, HTSUS.

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 the plaid textile bow was a loosely attached appurtenance included when measuring the constituent material of the shoe's external surface area. HRL 082661 stated that:

...subheading 6402.99.15, HTSUSA, does not require that everything that was excluded under Note 4(a) [to Chapter 64, HTSUS] 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 or reinforcements "such as" those mentioned in Note 4(a).

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

The protestant contends that the lace on the subject shoe is a loosely attached appurtenance and should not be included when measuring the external surface area of the shoe's upper. Protestant argues that HRL 080337, dated June 3, 1987, supports his position. HRL 080337 dealt with the classification of a woman's boot that had a diamond shaped ornament attached on the top of each side of the boot's shaft in a stud-like fashion. A V-shaped leather fringe was attached to the ornament. Leather fringes were inserted under the overlay on both sides of the boot. Moreover, the fringes were held in place by the same stitching that secured the overlay. HRL 080337 held that the leather fringes were loosely attached appurtenances as they were not attached in such a way to cover the underlying plastic surface of the boot and they were not wholly attached to the exterior surface.

While the lace on the subject shoe is not wholly attached to the exterior surface and allows the underlying plastic to be seen, there are other criteria Customs now considers in determining whether an item is considered a loosely attached appurtenance or not. As the cases below demonstrate, Customs now considers the amount of stitching holding the item to the upper and whether the shoe will be damaged when the item is removed. Moreover, it is hard to tell from the description of the shoe in HRL 080377 the amount of stitching in the overlay. It is likely that the overlay was attached with a few stitches and therefore, the fringes would have been loosely attached. It is our position that the fringes are more akin to the bows in the cases below and are not like the lace in the subject shoe.

HRL 088725, dated May 30, 1991, dealt with the issue of whether a textile bow attached to the upper of a woman's high heel slip-on shoe was excluded when determining the external surface area of the upper. This ruling held that since the fabric bow was attached by gluing and small staples and could be removed without rendering the shoe unserviceable, the bow was loosely attached. Therefore, the bow was excluded when measuring the external surface area of the shoe's upper.

In determining that the textile bow was a loosely attached appurtenance, HRL 088725 discussed two rulings that dealt with the issue of loosely attached appurtenances. The first ruling, New York Ruling Letter (NYRL) 809843, dated August 1, 1984, dealt with the classification of a patent vinyl dress shoe with a textile bow attached to its upper by means of a rivet. NYRL 809843 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 and its removal did not render the footwear unserviceable. As a result, the bow was excluded in determining the classification of the shoe's upper.

The second ruling, NYRL 812613, dated March 20, 1985, dealt with the classification of an infant's plastic dress shoe with a decorative 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.

Unlike the fabric bows in the above cases, the lace on this shoe is attached by continuous stitching; not just one or a few stitches. Furthermore, the lace on the shoe is attached by the same seam which holds the fabric top line edging in place. This fabric edging encircles the entire shoe's top line. In addition, to remove the lace, you must first remove the top line trim. The removal of the stitches attaching the lace to the upper would result in numerous holes in the upper and the shoe would be unserviceable. As a result, it is our position that the lace trim is not a loosely attached appurtenance and it should not be excluded when measuring the external surface area of the upper.

A U.S. Customs laboratory analysis was performed on a sample of the shoe to determine the percentage of the upper attributable to the lace and to the textile top line trim. In making its determination, the laboratory excluded the following: the bow, bead, buckle and strap. The results of Laboratory Report No. 3- 92-20379-001, dated January 24, 1992, are as follows:

75 % plastics material
13 % woven textile trim
12 % lace, corrected for perceived open spaces

When the lace and textile trim are added together, they comprise more than 10 percent of the external surface area of the upper. Therefore, when they are included in the measurement of the external surface area of the shoe's upper, the shoe's upper is less than 90 percent rubber/plastic. Accordingly, the infants dress shoes are classified in subheading 6402.99.60, HTSUS. We note that, even if we found the lace to be a loosely attached appurtenance, the shoe would still be classified in subheading 6402.99.60, HTSUS, as the textile top line trim represents over 10% of the upper's external surface area.

HOLDING:

The protest should be denied in full. A copy of this decision should be attached to the Customs Form 19 and provided to the protestant as part of the notice of action on the protest.

Sincerely,

John Durant, Director
Commercial Rulings Division

Previous Ruling Next Ruling

See also: