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