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HQ 959127




October 29, 1996

CLA-2 RR:TC:TE 959127 jb

CATEGORY: CLASSIFICATION

TARIFF NO: 6402.99.3060

Port Director
U.S. Customs Service
P.O. Box 619050
Dallas, TX 75261-0950

RE: Decision on Application for Further Review of Protest No. 5501-96-100094; ladies' slip-on shoes; Treasury Decision 93-88; Note 3 to chapter 64; heading 6402

Dear Sir:

This is a decision on an application for further review of a protest timely filed on behalf of Remac, Inc., on February 29, 1996, against your decision regarding the classification of two styles of ladies' slip-on shoes. All entries were liquidated on February 9, 1996. A sample of one style, "Nicholas" was received by this office for examination

FACTS:

The merchandise at issue consists of two styles of ladies' slip-on shoes, "Texsan" and "Nicholas". The submitted style, "Nicholas", is a low cut ladies' slip on shoe with an outer sole and upper of plastic. The upper features an embroidered Santa Claus and three metal stars at the top of the vamp, covering the top of the wearer's foot. The textile embroidery also continues down both sides of the shoe.

The Protestant claims both styles were incorrectly classified by Customs in subheading 6402.99.3060, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), which provides for "other footwear with outer soles and uppers of rubber or plastics: other footwear other: other: 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 6402.99.20 and except footwear having a foxing or a foxing-like band wholly or almost wholly of rubber or plastics applied or molded at the sole and overlapping the upper; other: for women". In the Protestant's opinion the proper classification for this merchandise is in subheading 6402.99.1865, HTSUSA, 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 (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): other: other: other: for women: other".

The Protestant states that the embroidery and metal accessories featured on the upper of the subject shoes is not part of the external surface area and as such, the subject shoes are properly classified in subheading 6402.99.1865, HTSUSA. In support of this claim the Protestant makes reference to Treasury Decision (T.D.) 93-88, 27 Customs Bulletin No. 46, November 17, 1993, in which the "external surface area of the upper" is defined as not including, among other things, any ornamentation.

ISSUE:

Whether the subject merchandise is properly classified in subheading 6402.99.1865, HTSUSA, or subheading 6402.99.3060, HTSUSA?

LAW AND ANALYSIS:

Classification of merchandise under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) is in accordance with the General Rules of Interpretation (GRI). GRI 1 requires that classification be determined according to the terms of the headings and any relative section or chapter notes. Where goods cannot be classified solely on the basis of GRI 1, the remaining GRI will be applied, in the order of their appearance.

Footwear definitions used by Customs in classifying footwear under Chapter 64, HTSUS, were published in T.D. 93-88. Therein, "external surface area of the upper" is defined, in pertinent part, as:

The "external surface" of the upper is, in general, the outside surface of what you see covering the foot (and leg, if applicable) when the shoe is worn.

A. It does not include:

1. Accessories and reinforcements such as ankle patches, edging, ornamentation, (i.e., tassels, pompoms, or braids), buckles, tabs, eyelet stays, slide fasteners, or similar attachments. Other examples include the leather pieces sewn on top of the lower part of the upper in basketball shoes, and "filled-in" embroidery.

Heading 6402, HTSUS, provides for, other footwear with outer soles and uppers of rubber or plastics. The legal notes to chapter 64, HTSUS, state:

3. For the purposes of this chapter:

(a) the terms "rubber" and "plastics" include woven fabrics or other textile products with an external layer of rubber or plastics being visible to the naked eye; for the purpose of this provision, no account shall be taken of any resulting change of color; and

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;

In determining the proper classification for the subject merchandise there are two requisite steps which must be followed. First, a review of T.D. 93-88 (which provides pertinent definitions for footwear) reveals that ornamentation and filled-in embroidery, among other things, are not included in the determination of the external surface area of the upper. As such, in the case of the subject merchandise the constituent material having the greatest external surface remains the plastic upper regardless of the embroidery and the accessories. We do not dispute this fact. However, having an understanding of how the "external surface area of the upper" is defined does not by itself bring us to the appropriate provision in the tariff for this merchandise. Thus, the second step involves compliance with the appropriate subheading provision for the merchandise.

The Protestant claims that the appropriate provision for this subheading is 6402.99.1865, HTSUSA. To qualify for that particular classification the merchandise must meet all of the terms of the subheading. These terms are as follows:

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 chapter 64) is rubber or plastics; (Emphasis added)

EXCEPT:
a. footwear having a foxing or foxing-like band applied or molded at the sole and overlapping the upper; b. 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.

In regard to the subject merchandise, although the terms of the exceptions of the subheading do not concern this particular merchandise, the merchandise must be in compliance with the condition that the rubber or plastics upper constitute over 90 percent of the external surface area including accessories. As defined in Note 4 to chapter 64, HTSUS, above, "accessories" includes ornamentation. Thus, although the textile embroidery and metal star accessories are not included in determining the classification in heading 6402, HTSUS, it is included in the determination at the subheading level (6402.99) of whether the upper has an external surface area of over 90 percent rubber or plastic.

Based on an examination of the subject merchandise by the Customs Laboratory, the textile embroidery and accessories constitute over ten percent of the exterior surface area of the upper. As the combined embroidery and accessories constitute over ten percent of the exterior surface of the upper, it thus follows that the rubber or plastics constitutes less than 90 percent of the exterior surface area. Accordingly, the subject merchandise is excluded from classification in subheading 6402.99.1865, HTSUSA, and is properly classified in subheading 6402.99.3060, HTSUSA.

HOLDING:

The protest should be denied in full and a copy of this ruling should be appended to the CF 19 Notice of Action to satisfy the notice requirement of section 174.30(a) Customs Regulations.

In accordance with Section 3(A)(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, this decision 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, Freedom of Information Act and other public access channels.

Sincerely,
John Durant, Director
Tariff Classification Appeals
Division

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