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NY L86337




August 15, 2005

CLA-2-64:RR:NC:247: L86337

CATEGORY: CLASSIFICATION

TARIFF NO.: 6402.99.18

Mr. Peter Jay Baskin
Sharretts, Paley, Carter & Blauvelt, P.C. 75 Broad Street
New York, NY 10004

RE: The tariff classification of footwear from China

Dear Mr. Baskin:

In your letter dated July 19, 2005 you requested a tariff classification ruling on behalf of GMA Accessories, Inc., for four footwear styles.

You have submitted samples of styles identified as FF-5703 and FF-4948 along with photographs of styles FF-5136K and FF-5142K. National Import Specialist, Richard Foley, previously examined all four styles.

The issue involved with your request is the classification impact (if any) of various ornaments attached to the uppers of the sandals. Since the uppers are of rubber/plastics materials and the ornaments are of other (than rubber or plastics) materials and account for more than 10 percent of the surface area of the uppers, their treatment will affect the classification.

In the past, United States Customs & Border Protection, (USCBP), 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 external surface area of the upper if their removal does not render the shoe unserviceable as footwear. Further, these items, commonly referred to as “Loosely Attached Appurtenances” are not considered to be part of the upper, therefore they are not included nor added back when measuring ESAU. Ruling 0527680 dated January 16, 1978 stated “The term “loosely attached” refers to strips, buttons, pompoms, etc., which are attached by rivets, gluing or stitching (tacked) at one or two points, and which serve as decorations. When such decorations cannot be removed without rendering the shoe unserviceable as footwear, they are considered part of the exterior surface area of the upper.

As you note, USCBP has stated in numerous rulings that “not all items removed from consideration in determining the external surface of the upper under Note 4(a), Chapter 64 need be added back in determining classification under the instant subheading.” 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 when measuring the external surface area of the upper. 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.

HQ 955111 February 13, 1995, which concerns the issue of textile embroidery on a plastic upper, cites Inter-Pacific v U.S.A. 8 CIT 132 (1984) “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” “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 unsaleable 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 unsaleable’. “

In determining whether or not an item is a loosely attached appurtenance, among other things, we look to see if it is loosely attached, (i.e. secured by minimal stitching or a single rivet or tack), if it is not functional (added only for it's decorative qualities) and if it can be removed without making the shoe unserviceable.

The four footwear styles submitted with your ruling request all have rubber/plastics outer soles and uppers with minimally attached wooden bead ornaments.

Style FF-5703 is a women’s platform thong with a suede-like material foot bed. The upper is decorated with 12 wooden beads secured to the upper with a single chain stitch. Style FF-4948 is a thong sandal with multiple wooden beads secured to the upper with a single chain stitch. Styles FF-5136K and FF-5142K are women’s thong sandals with suede-like material foot beds, textile material wedge-wraps and multiple wooden beads dangling from the upper, each secured by a single stitch.

The wooden bead ornaments on all four styles meet the definition of loosely attached appurtenances articulated in previous USCBP rulings and are disregarded entirely from external surface percentage measurements for tariff classification purposes.

The applicable subheading for styles FF-4703, FF-5136K, FF-4948 and FF-5142K will be 6402.99.18, HTS, which provides for footwear with outer soles and uppers of rubber or plastics, other. Not covering the ankle, having uppers of which over 90 percent of the external surface area (including accessories or reinforcements) is rubber or plastics, not having a foxing or foxing-like band and not protective, other. The rate of duty will be 6 percent ad valorem.

The submitted samples are not marked with the country of origin. Therefore, if imported as is, they will not meet the country of origin marking requirements of 19 U.S.C. 1304. Accordingly, the footwear would be considered not legally marked under the provisions of 19 C.F.R. 134.11 which states, "every article of foreign origin (or its container) imported into the U.S. shall be marked in a conspicuous place as legibly, indelibly, and permanently as the nature of the article (or container) will permit, in such manner as to indicate to the ultimate purchaser in the U.S. the English name of the country of origin of the article."

This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 C.F.R. 177).

A copy of the ruling or the control number indicated above should be provided with the entry documents filed at the time this merchandise is imported. If you have any questions regarding the ruling, contact National Import Specialist, Richard Foley at 646-733-3042.

Sincerely,

Robert B. Swierupski
Director,

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