CLA-2 CO:R:C:M 950944 KCC
Savant Customs Brokers & Freight Forwarders, Inc.
11 Broadway, Suite 1068
New York, New York 10004
RE: Women's sandals; GRI 1; external surface area of the upper;
Note 4(a), Chapter 64; loosely attached appurtenances;
082661; 087430; plausible upper; Note 3, Chapter 64;
General Explanatory Note D to Chapter 64
Dear Sir:
This is in response to your letter dated November 27, 1991,
to Customs in New York, on behalf of Lollypop Import & Export
Inc., requesting the tariff classification of three women's
sandals from Taiwan under the Harmonized Tariff Schedule of the
United States (HTSUS). Your letter and samples were forwarded to
this office for a response.
FACTS:
The articles under consideration are three styles of women's
sandals which have rubber/plastic outer soles.
Style A021 is either a gold or silver colored women's slip-
on-sandal and Style A020 is a silver colored women's Y-thong
sandal. Both of these styles have a large fake jewel ornament
held by a staple or rivet to the straps which form the upper.
The sandal's uppers are composed of a bottom strap of woven
fabric visibly coated with black plastic. The upper external
surface of these two styles is composed of four metallic looking
strips 1/8 of an inch wide made of textile fabric visibly coated
with plastic which are interwoven with black threads. The
process of interweaving the strips produces a zig-zag type
pattern with the black threads filling in the small gaps between
the strips. The combination of metallic strips and black threads
forms a thin band about 7/8 of an inch wide. The zig-zag
combination and two strips of plastic edging on each side are
cemented on top of the bottom strap which is not visible in the
shoe.
Style A018 is a gold colored women's Y-thong sandal. The
A018 sandal's upper is composed of a bottom strap of woven
fabric visibly coated with black plastic. The upper's external
surface is predominately composed of interwoven, brightly
colored, shiny strips which are extremely thin and are about 1/16
of an inch wide. These strips are made of nylon plastic with a
deposit of metallic powder on the inner surface and, if imported
separately, they would be classified as a textile material for
tariff purposes. The interwoven textile material and a gold
plastic edging on either side are cemented onto the bottom strap
which is not visible in the shoe.
ISSUE:
What is the proper tariff classification of styles A021,
A020, and A018 women's sandals under the HTSUS?
LAW AND ANALYSIS:
The classification of merchandise under the HTSUS is
governed by the General Rules of Interpretation (GRI's). GRI 1,
HTSUS, states in part that "for legal purposes, classification
shall be determined according to the terms of the headings and
any relative section or chapter notes...."
Footwear is classified in Chapter 64, HTSUS, and
classification in this chapter is based upon the construction of
the outer soles and uppers. Styles A021 (gold and silver) and
A020 are classified under subheading 6402.99.15, HTSUS, which
provides for other footwear with outer soles and uppers of rubber
or plastics, 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. Note 4(a), 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.
The fake jewelry ornamentation is excluded when determining
the composition of the uppers in these two styles. We are of the
opinion that the fake jewelry ornamentation is a loosely attached
appurtenance which Customs has determined is not a part of the
upper and is, therefore, not included in measuring the external
surface area of the upper. See, Headquarters Ruling Letter (HRL)
082661 dated October 17, 1988, which held that a textile bow sewn
onto an upper of a women's Y-thong sandal is a loosely attached
appurtenance and is not included when calculating the composition
of the upper.
Additionally, in HRL 087430 dated October 22, 1990, Customs
took the position that a layer which comprises all of the
external surface of the upper is in fact the external surface of
the upper even if there is a plausible upper material underneath.
In a shoe which has an upper comprised of several layers of
material, the top layer will be considered the external surface
of the upper when that layer covers the whole surface of the
upper. In Models A021 (gold and silver) and A020, the edging
and metallic colored strips interwoven with the black threads
covers the entire "plausible upper", the bottom straps.
Therefore, the edging and metallic colored strips interwoven into
the black threads are considered the external surface area of the
upper.
The edging and metallic colored strips are considered rubber
or plastic for tariff purposes. See, Note 3, Chapter 64, HTSUS,
which states, that [f]or purposes of this chapter, the
expression 'rubber or plastics' includes any textile material
visibly coated (or covered) externally with one or both of those
materials. Based on a visual examination, we are of the opinion
that over 90 percent of the external surface area of the upper is
composed of rubber or plastics and, therefore, classification is
under subheading 6402.99.15, HTSUS.
Based on a visual examination, we are of the opinion that
the external surface area of the upper in Style A018 is the gold
edging and brightly colored and shiny strips. However, since
this upper consists of two different materials (plastic and
textile) classification is determined by the constituent material
which has the greatest external surface area. See, General
Explanatory Note (EN) D to Chapter 64 of the Harmonized Commodity
Description and Coding System (HCDCS), states that:
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. The
constituent material of any lining has no effect on
classification.
HCDCS, Vol. 3, p. 874. The Explanatory Notes, although not
dispositive, are to be looked to for interpretation of the HTSUS.
54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).
The constituent material in the upper is the interwoven,
brightly colored, shiny strips which are considered textile
material for tariff purposes. Therefore, Style A018 is
classified under subheading 6404.19.35, HTSUS, which provides for
"Footwear with outer soles and uppers of rubber, plastics,
leather or composition leather and uppers of textile
materials...Footwear with outer soles of rubber or
plastics...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 6404.19.20 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...."
HOLDING:
Models A021 (gold and silver) and A020 are classified under
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 (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....", which is dutiable at the rate of 6 percent
ad valorem.
The Style A018 is classified under subheading 6404.19.35,
HTSUS, which provides for "Footwear with outer soles and uppers
of rubber, plastics, leather or composition leather and uppers of
textile materials...Footwear with outer soles of rubber or
plastics...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 6404.19.20 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....", which is dutiable at the rate of 37.5
percent ad valorem.
Sincerely,
John Durant, Director
Commercial Rulings Division