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 > 1994 HQ Rulings > HQ 0952149 - HQ 0952675 > HQ 0952167

Previous Ruling Next Ruling



HQ 952167


August 23, 1993

CLA-2 CO:R:C:M 952167 DFC

CATEGORY: CLASSIFICATION

TARIFF NO.: 6402.99.30

District Director of Customs
300 South Ferry Street
Room 2017
Terminal Island
San Pedro, CA 90731

RE: Protest no. 2704-91-104350; Footwear; Uppers, External surface area; Accessories and reinforcements; T.D. 84-59

Dear Sir:

This is in response to the Application for Further Review of Protest no. 2704-91-104350 dated October 2, 1991, covering a shipment of women's sandals manufactured in China. The entry covering this merchandise was liquidated on July 12, 1991. The protest was timely filed on October 2, 1991. Samples were submitted for examination.

FACTS:

The merchandise in issue consists of four styles of women's sandals which are described as follows:

Style 84001 is a women's Y-thong plastic sandal. It has plastic sole, three plastic straps attached to the sole, and a plastic thong which is connected to the straps. Each strap is encircled by a 1/2 inch metal tube on each side of the foot. The tubes are capable of sliding along the surface of the straps. Movable flat metal wire clips encircle the plastic straps and connect the three straps together on each side of the thong thus making the thong and straps a connected whole.

Style 84002 is a women's Y-thong plastic sandal. It has a plastic sole, four plastic straps attached to the sole, and a metal medallion attached to the plastic straps which connects a thong to the straps. Each strap is encircled by a 1/2 inch gold tube on each side of the foot.

The tubes are capable of sliding along the surface of the straps. Movable flat metal wire clips encircle the straps so that the first strap is connected to the second, the second to the third, and so on so that the thong and straps are a connected whole.

Style 84003 is a women's Y-thong plastic sandal. It has a plastic sole, seven plastic straps attached to the sole, a plastic thong which is connected to the plastic straps, triangular metal clips encircling the plastic straps which are capable of being slid along the surface of the straps, and one triangular metal clip which connects the thong to the first plastic strap. The metal clips are arranged so that two of the clips connect the first strap to the second strap, three clips connect the second strap to the third strap, and so on until finally one clip connects the sixth strap to the seventh, thus making the thong and straps a connected whole.

Style 84034 is a women's plastic sandal. It has a plastic sole, plastic straps attached to the sole, and a plastic heel strap. A metal medallion connects a thong to the straps in a manner similar to the connection of the thong and straps in style no. 84002. The straps are encircled with 1/2 inch wide metal tubes and the straps are connected with metal clips in the same way as in styles 84001 and 84002.

With the exception of style 84034, the entry covering these women's sandals was liquidated under subheading 6402.99.30, Harmonized Tariff Schedule of the United States (HTSUS), as other footwear with outer soles and uppers of rubber or plastics, other, having uppers of which not 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, footwear with open toes or open heels. The applicable rate of duty for this provision is 37.5% ad valorem.

That portion of the entry covering style 84034 was liquidated under subheading 6402.99.60, HTSUS, as other footwear with outer soles and uppers of rubber or plastics, other, having uppers of which not 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, other, valued not over $3/pair. The applicable rate of duty for this provision is 48% ad valorem.

The protestant claims that the sandals are properly classifiable under subheading 6402.99.15, HTSUS, as other footwear with outer soles and uppers of rubber or plastics, 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. The applicable rate of duty for this provision is 6.6% ad valorem.

ISSUE:

Are the metal components of the sandals (i.e., tubes, clips, medallions or disks) considered loosely attached appurtenances and precluded from measurement as external surface area of the upper or are they accessories or reinforcements which must be included in measurement of the external surface area of the upper?

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.

Note 4(a) to chapter 64, HTSUS, which is relevant here, 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 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 also relevant here, provides 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. . . .

In support of its position that the metal components are not parts of the uppers of the subject sandals, counsel for the protestant cites the case of United States v. Castelazo & Associates, 57 CCPA 16, C.A.D. 970 (1969), and Headquarters Ruling Letter (HRL) 082661 dated October 17, 1988. In Castelazo the court ruled that fur-trimmed buttons attached to ballerina slipper uppers were not parts of uppers because they provided only ornamental value and did not contribute utility to the uppers. In HRL 082661 Customs followed Castelazo and ruled that a plaid textile bow sewn to the upper of a women's Y-thong sandal was a loosely attached appurtenance and not considered a part of the upper.

It appears that the "practice" alluded to in HRL 082661 of not considering loosely attached appurtenances parts of uppers based on their having merely ornamental value and not adding any utility to the shoes has been modified by the holding in the case of Inter- Pacific Corp., v. United States, 8 CIT 132 (1984). In that case the court ruled that embroidery [ornamentation] permanently attached to a vinyl upper of a shoe is a part of the upper and also part of the exterior surface area of the upper. Plaintiff, relying heavily on Castelazo, argued that the embroidery sewn on the shoe upper should be excluded in determining the composition of the exterior surface area of the upper since "the embroidery has no utilitarian function nor does it add to the usefulness of the shoe."

It is our interpretation of Inter-Pacific that whether an attachment to an upper is ornamental or functional is not relevant. In defining exterior surface area of an upper the court stated at page 139 the following:

The common meaning of the term exterior surface area is clear. It is a sensory perception manifest as being the outermost covering of a particular object without regard to the functionality of the covering. TSUS has effectively changed the classification standard so that the judicial distinction made between the upper and an ornament attached thereto is no longer of consequence. Rather of import now is the manner in which something (whether ornamental or not) is attached to the upper. If it is attached in such a way that it covers the underlying plastic surface and a normal viewing discloses that it constitutes at least part of the exterior surface area of the upper then that part constituting the external surface area of the upper must be deemed part of the upper and its composition must be included in arriving at the overall area of the upper.

For this court to draw the distinction that because something is ornamental it cannot be deemed part of the upper when visibly it clearly forms part of the exterior surface of the upper would be adding a further dimension never intended by Congress. Schedule 7, Part 1, Subpart A, Headnote 3(a) demonstrates the importance Congress placed on the visibleness or outward appearance of the exterior surface area, " * * * the rubber or plastics forming the exterior surface area specified, if supported by fabric or other material, must coat or fill the supporting material with a quantity of rubber or plastics sufficient to visibly and significantly affect the surface otherwise than by change in color * * *." (Emphasis supplied)

It is our observation following Inter-Pacific that the test for determining whether an attached appurtenance is part of an upper is whether its removal would damage the slipper so as to render it unsalable or unserviceable as footwear. In that case the court addressed the issue of the effect of removing appurtenances. Specifically, in finding that the ornamental sewing was a part of the shoe upper, the court noted that "removal of the stitching attaching the embroidery to the vinyl upper would render the shoe unsalable." Thus, removal of the metal components with the exception of the sliding tubes from the sandals in issue would clearly render them unsalable if not unserviceable as footwear. Consequently, application of the test in this instance compels a finding that the metal components are parts of uppers rather than loosely attached appurtenances.

Counsel for the protestant asserts that even if Customs were to consider the metal components parts of uppers, they would not be taken into account in measuring the external surface area of the uppers because they are not ejusdem generis with the exemplars listed in note 4(a) to chapter 64. Unlike the enumerated items, the metal attachments are not structural, functional or firmly attached. We disagree. The metal attachments are structural, functional, and firmly attached. Specifically, styles 84002, 84003 and 84034 have metal attachments which connect two or more of the plastic strips and comprise a significant portion of the entire uppers. Removal of the disks (medallions) which are the larger of these attachments (style nos. 84002 and 84034) means removal of a significant portion of the "part of the shoe or boot above the soles." See General EN (D) to Chapter 64 description of upper. In other words, because these metal disks, are the only shoe part covering a portion of the foot, they must be in fact upper material.

The flat metal wire clips on styles 84001, 84002, and 84034 and the triangular metal clips on style 84003 are to be taken into account in measuring the external surface area of the uppers because they are functional parts of the uppers which serve to hold the plastic straps together. In addition, one metal clip on style 84003 serves to connect the thong to the first plastic strap. The aforementioned features, although attractive and ornamental, are functional.

Counsel for the protestant argues that the metal components of the sandals are on different planes than the uppers, and this difference is greater than the difference in planes on the shoes where the tongue was held not be part of the upper. See T.D. 84- 59. In those instances where the tongue was held not to be part of the upper, it was not only on a plane lower than a portion of the upper but was also partially or wholly covered by laces and eyelet facings or stays. This is not the case here. The metal components are not wholly or partially covered by any other material.

Additionally, counsel for protestant claims that Customs classification of style 84034 under subheading 6402.99.60, HTSUS, as "other footwear" rather than under subheading 6402.99.30, HTSUS, as footwear "with open toes or open heels" is incorrect. We agree with counsel on this point noting that these shoes have "open toes" which requires their classification under subheading 6402.99.30, HTSUS.

In summary, it is our position that inclusion of the metal components as external surface area of the uppers would preclude classification of the sandals under subheading 6402.99.15, HTSUS, because not over 90% of that area would be rubber or plastics.

HOLDING:

The medallions or disks which are in fact upper material are to be included in the measurement of the external surface area of the uppers at both the international level (four digit) and the national level (eight digit). The remaining metal components of the sandals including the tubes are accessories or reinforcements within the meaning of Note 4(a) to Chapter 64, HTSUS, and must be included in the measurement of the external surface area of the uppers at the national level.

Style 84001, 84002, 84003, and 84034 are classifiable under subheading 6402.99.30, HTSUS.

You should deny the protest, except to the extent reclassification of style no. 84034 as indicated above results in a partial allowance. A copy of this decision should be attached to the Customs Form 19 and provided to the protestant, through counsel, as part of the notice of action on the protest.

Sincerely,

John Durant, Director
Commercial Rulings Division


Previous Ruling Next Ruling

See also: