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HQ 952815


January 4, 1993

CLA-2 CO:R:C:M 952815 DFC

CATEGORY: CLASSIFICATION

TARIFF NO.: 6404.19.15

District Director of Customs
Patrick V. McNamara Building
477 Michigan Ave
Detroit, Michigan 48266

RE: Protest 3801-2-102728; Sandals, beachcomber; Accessories and reinforcements; 081297

Dear Sir:

This is in response to the Application for Further Review of Protest no. 3801-2-102728 dated August 19, 1992, covering a shipment of beachcomber sandals manufactured in the People's Republic of China. A sample was submitted for examination.

FACTS:

The women's beachcomber sandals, stock no. 841416, have a rubber/plastic sole and a "Y" configuration textile upper which measures 12" long by 1" wide to which is stitched a leather strip overlay. There is also a smaller strap which measures 2-1/2 " long by 1/2" wide and is composed entirely of textile material which is used to connect the main strap to the sole.

The entry covering this footwear was liquidated under subheading 6404.19.35, Harmonized Tariff Schedule of the United States (HTSUS), as footwear with outer soles of rubber, plastics, leather or composition leather and uppers of textile materials, footwear with outer soles of rubber or plastics, other, other. The applicable rate of duty for this provision is 37.5% ad valorem.

The protestant maintains that these beachcomber sandals are properly classifiable under subheading 6403.99.75, HTSUS, as footwear with outer soles of rubber, plastics, leather or composition leather and uppers of leather, other footwear, other, for other persons, valued not over $2.50/pair. The applicable rate of duty for this provision is 15% ad valorem.

ISSUE:

Are the leather overlays stitched over the textile straps [uppers] considered accessories or reinforcements within the purview of note 4(a) to Chapter 64?

Does subheading 6404.19.15, HTSUS, more specifically describe the beachcomber sandals than subheading 6404.19.25-35, HTSUS?

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 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. GRI 6, HTSUS, requires that the GRI's be applied at the subheading level on the understanding that only subheadings at the same level are comparable. The GRI's apply in the same manner when comparing subheadings within a heading.

Note 4(a) to Chapter 64, HTSUS, reads as follows:

4. Subject to note 3 to this chapter:

(a) 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.

The Harmonized Commodity Description and Coding System Explanatory Notes (EN) to the HTSUS, although not dispositive should be looked to for the proper interpretation of the HTSUS. See 54 FR 35128 (August 23, 1989). General EN (D) to Chapter 64 which is relevant here reads in pertinent part as follows:

If the upper consists of two or more materials, classification is determined by the constituent material which has the greatest external surface area, no account being taken of accessories or reinforcements such as ankle patches, protective or ornamental strips or edging, other ornamentation (e.g., tassels, pompons or braid), buckles, tabs, eyelet stays, laces or slide fasteners.

Noting note 4(a) to chapter 64, HTSUS, the protestant asserts that because leather covers a vast majority of the external surface area of the upper, the sandals have uppers of leather for tariff purposes.

Customs has taken the position that the term "accessories or reinforcements," although not fully defined, includes any additional material added to an otherwise completed upper. In this instance the leather strips stitched over the textile uppers of the sandals meet this definition of the term "accessories or reinforcements." Consequently, following note 4(a) to chapter 64, the sandals have uppers of textile material which precludes their being classified under subheading 6403.99.75, HTSUS.

GRI 3(a), HTSUS, provides in part 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:

(a) The heading which provides the most specific description shall be preferred to headings providing a more general description. . . .

The sandals are described by two equally indented descriptions within subheading 6404.19, HTSUS. The first description under subheading 6404.19.15 provides for "[f]ootwear having uppers of which over 50 percent of the external surface area (including any leather accessories or reinforcements such as those mentioned in note 4(a) to this chapter) is leather." The second description under subheading 6404.19.25-35, HTSUS, provides for "[f]ootwear with open toes or open heels; footwear of the slip-on type, . . .

With reference to GRI 3(a), we note that in Headquarters Ruling Letter 081297 dated November 25, 1988, Customs took the position that subheading 6404.19.15, HTSUS, is a more specific provision for certain beachcomber sandals having nylon uppers with stitched leather overlays than subheading 6404.19.25-35, HTSUS.

Your reliance on New York Ruling Letter 856105 (NYRL) dated September 24, 1990, as support for the position that the sandals in issue are classifiable under subheading 6404.19.35, HTSUS, is misplaced. That ruling concerned the classification of beachcomber sandals having plastic overlays over textile rather than leather overlays over textile which is the case here. GRI 3(a), supra, was not applicable to the facts in NYRL 856105. Specifically, the beachcomber sandals were not prima facie classifiable under subheading 6404.19.15, HTSUS, and subheading 6404.19.35, HTSUS, because their uppers did not have an external surface area of over 50 percent leather which is a requirement for classification under subheading 6404.19.15, HTSUS.

HOLDING:

The beachcomber sandals are classifiable under subheading 6404.19.15, HTSUS, as footwear with outer soles of rubber, plastics, and uppers of textile materials, other, footwear having uppers of which over 50 percent of the external surface area (including any leather accessories or reinforcements such as those mentioned in note 4(a) to this chapter) is leather. The rate of duty for this provision is 10.5% ad valorem.

Since reclassification of the merchandise as indicated above will result in a lower rate of duty than claimed, you should allow the protest 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


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