CLA-2 CO:R:C:M 955111 DFC
District Director of Customs
300 South Ferry St
Room: 1001
Terminal Island, CA 90731
RE: Protest 2704-93-101982; Uppers, external surface area;
Appurtenances, loosely attached; plausible upper material;
Accessories /Reinforcements; Note 4(a) to Chapter 64;
HRL's 950944,082661,085106,085381,087430; United States v.
Castelazo & Associates; Inter-Pacific Corp., v. United
States
Dear District Director:
This is in response to Protest 2704-93-101982 concerning
your action in classifying and assessing duty on two styles of
women's footwear manufactured in China. Samples of both styles
were submitted for examination.
FACTS:
Style 85772
The sample, identified as "Anne Michelle" style 85772, is a
woman's sandal with an open toe, an open heel, a sole of
rubber/plastics material, and an upper of plastics (plastic-
coated textile fabric). The upper consists of two triangular
straps which emerge from either side of the midsole just forward
of the heel and meet over the metatarsal arch. These straps are
about 65 millimeters (mm) wide when they emerge and about 12 mm
wide when they meet. At the point where they meet, the straps,
still joined together, form a narrow vertical projection which
reenters the sole between the big and second toes.
Set into the external surface of each strap are seven "gems"
each comprised of a marquise-shaped "gemstone" of colored acrylic
plastic in a slightly larger marquise-shaped metal setting. The
"gems," fastened to the upper via prongs at each end, project
about 2.5 mm above the surface of the upper. In order to hold
the "gemstone" in place, the setting is wider at the base than at
the top. This geometry means that the metal setting is visible
on the external surface of the upper (ESAU) presenting an oval-
within-an-oval image; this oval-shaped "ring" of metal makes a
small contribution to the ESAU.
Style 85730
The sample, identified as "Anne Michelle" style 85730 is a
sling-back thong sandal with an upper of plastic strips plus a
center piece shaped like a seven-pointed star. The thong and two
side pieces which comprise part of the upper are not directly
attached to each other. Instead, the ends of all three are
stitched to the lower layer of the center piece. The top surface
of the lower layer of the center piece is textile. However, none
of the lower layer of the centerpiece can be considered ESAU
because it is completely covered by the upper layers of the
center piece. The top layers of the center piece are also shaped
like a seven-pointed star and are identical in size and shape to
the lower layer which they completely cover. The top layers
consist of a textile base which is completely covered by one
large round plastic imitation "gem", seven plastic "pearls", and
a quantity of plastic sequins, and quantities of round and
cylindrical glass beads, all of which are stitched to the textile
base.
The entry covering styles 85772 and 85730 was liquidated on
March 26, 1993, under subheading 6402.99.30, Harmonized Tariff
Schedule of the United States (HTSUS), with duty at the rate of
37.5% ad valorem. The protest was timely filed on June 21, 1993.
Protestant claims that the footwear is properly classifiable
under subheading 6402.99.15, HTSUS, with duty at the rate of 6%
ad valorem.
ISSUE:
What is included in measuring the external surface area of
the upper?
Do the shoes have uppers the external surface areas of which
are over 90% rubber/plastics?
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 heading or notes do not otherwise require, according to [the
remaining GRI's]." In other words, classification is governed
first by the terms of the headings of the tariff and any relative
section or chapter notes.
The competing provisions are as follows:
6402 Other footwear with outer soles and uppers of rubber or
plastics:
* * *
Other footwear:
6402.99 Other:
Having uppers of which over 90 per-
cent of the external surface area
(including any accessories or re-
inforcements 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):
* * *
6402.99.15 Other . . . . . . . . . .
* * *
Other: 6402.99.30 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 . .
Note 3 to chapter 64, HTSUS, reads, as follows:
3. For the 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.
Note 4(a) to chapter 64, HTSUS, 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 or reinforcements 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 T.D. 89-80, 54 FR 35127, 35128 (August 23, 1989). In part,
General EN (D) to chapter 64, HTSUS, provides that "[f}or the
purposes of the classification of footwear in this Chapter, the
constituent material of the uppers must also be taken into
account . . . 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 . . .."
Style 85772
The protestant submitted a report prepared by a private
laboratory, dated June 11, 1993, stating that the external
surface area of the upper (ESAU) of style 85772 (including
accessories and reinforcements) is 94.41% plastic and 5.59%
metal.
With a letter dated February 11, 1994, the private
laboratory submitted a report dated February 7, 1994, re-
analyzing style 85772. This report noted that in its June 11,
1993 analysis, it had not measured the downward projection or
thong, but had determined the total upper surface area from the
point where the two straps met above the toes before turning
down. However, pursuant to Customs instructions, the two sides
of the downward projection and also the front surface where the
two downward straps were joined were counted as ESAU. The rear
surface of the downward projection was disregarded. The re-
analysis revealed that the ESAU of style 85772 (including
accessories and reinforcements) is 95.18% rubber or plastics and
4.82% metal.
The private laboratory attributes the difference in results
reached in its second report to two factors: First, the areas of
all 14 metal settings were measured, instead of measuring the
area of one setting and multiplying by 14, as was done in the
first report. Second, the downward projection was included as
part of the ESAU in the second report, whereas in the first
report it was disregarded.
Customs Laboratory Report 7-93-20460-001 dated February 23,
1993, covering a sample of style 85772 states that the ESAU of
the upper, including accessories and reinforcements, is 89.1%
rubber or plastics and 10.9% metal. In measuring the ESAU, the
Customs laboratory measured only the narrow forward surfaces
formed by the edges of the two plastic strips where they are sewn
together.
At the request of the Customs National Import Specialist for
footwear, the sample of style 85772 was reanalyzed to include the
sides of the toe section as part of the ESAU, and supplemental
Customs Laboratory Report 7-94-20435 was issued on January 27,
1994. The laboratory found that the ESAU is 89.7% rubber or
plastics and 10.3% metal.
Our examination of the laboratory worksheets related to the
subject sandal indicates that the analysis by the Customs
laboratory was done in accordance with the U.S. Customs Service
Laboratory Methods for Footwear. The ESAU was determined by two
different analysts using a polar planimeter, and again using an
image analysis system. Further, the ESAU was not measured in
three dimensions. We find no error by the Customs laboratory in
their measurement of the ESAU of style 85772.
With respect to the difference in analysis results between
the Customs laboratory and the private laboratory, we note that
two different samples of the same style and size were analyzed.
The Customs laboratory sample was made for a right foot, and the
private laboratory sample is a left foot sandal. The Customs
laboratory also measured the plastic area of the protestant's
sample and found it to be approximately 7% greater than the
original sample.
In cases such as this, where a party submits an outside
report that differs from the Customs laboratory report, the
Customs report cannot be disregarded and, therefore, takes
precedence over the outside report. Customs Directive 099 3820-
002 dated May 4, 1992. In administering the HTSUS, Customs must
be consistent while classifying the same type of merchandise
entering the U.S. To consistently classify products, the same
laboratory analysis must be executed throughout Customs. Customs
cannot rely on outside reports which may or may not utilize
different testing methods and still remain consistent in its
tariff classification. Additionally, Customs does not have any
evidence that the merchandise tested by the outside laboratory is
the same merchandise that was imported into the U.S. Therefore,
Customs must rely on its own laboratory analysis when determining
the proper tariff classification of the merchandise.
Counsel for protestant maintains that neither the "gems" nor
the metal settings should even be included in measuring the ESAU
of style 85772 following Headquarters Ruling Letter (HRL) 950944
dated April 20, 1992. In HRL 950944 which also concerned the
classification of a women's sandal, Customs ruled that:
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.
The fake jewelry ornament on the styles in HRL 950944 was loosely
held to the straps which formed the upper by a staple or rivet.
Such is not the case here. The imitation jewels are very firmly
attached to the plastic strips by two prongs. Consequently, the
imitation jewels are not loosely attached appurtenances and HRL
950944 is not controlling.
In view of the foregoing, it is our position that style
85772 has an upper the ESAU of which is not over 90%
rubber/plastics.
Style 85730
Counsel for the protestant asserts that the glass beads are
not part of the upper. Further, they are not even attached to
the upper surface area. In fact, the glass beads constitute a
part of a plastic applique that is attached to the upper. In
support of its position that the glass beads are not part of the
upper of the subject sandal, counsel cites the case of United
States v. Castelazo & associates, 57 CCPA 16, C.A.D.1970 (1969),
and Headquarters Ruling Letters (HRL's) 082661 and 085106 dated
October 17, 1988 and September 22, 1989, respectively. 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. In HRL 085106 Customs ruled that glass beads
sewn in patterns on the ESAU of a women's slip-on shoe are
ornamentation on a textile upper and should not be considered as
ESAU.
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 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 disclosed 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, removable of the
outer layer of the centerpiece from style 85730 would clearly
render the sandal unsalable if not unserviceable as footwear.
Consequently, application of the test in this instance compels a
finding that the plastic components [sequins, imitation gem,
pearls] and the glass beads are parts of uppers rather than
loosely attached appurtenances.
HRL 085106 cited by counsel as support for protestant's
position is not relevant here. The shoes described therein have
beads that have been sewn in patterns on an underlying textile
that is viable upper material. The beading design does not cover
the entire surface and where there are no beads the textile
material is clearly seen. In other words, the intention was to
enhance the textile upper with beads; not to obscure it. The
same cannot be said for the submitted sample because there is
very little space between beads. Further, these beads are meant
to obscure the underlying material. The glass beads on the
sample sandal occupy at least 10% of the ESAU.
Counsel for protestant argues that if the applique is
considered part of the upper, it is not an accessory or
reinforcement. We agree with counsel's conclusion in this
regard, but we disagree with counsel's reasoning in reaching this
conclusion. The center piece consisting of textile, plastic and
glass form a portion of the upper (plastic straps form the
remaining portion of the upper) and is ESAU. It is our
observation that the glass beads, sequins, pearls and an
imitation gem virtually cover the underlying textile material.
It is to be noted that in those instances where the underlying
material is considered to be a plausible upper material, it has
been our position to consider the beads ESAU, if the gaps between
them were de minimis. See HRL 085381 dated November 21, 1989.
As further support of our position that the center piece
constitutes part of the upper and that the glass beads, sequins,
pearls and an imitation gem stone comprise its ESAU, we note HRL
087430 dated October 22, 1990. In that ruling, we took the
position that a layer which comprises all of the ESAU is in fact
the ESAU even if there is a plausible upper material underneath.
Therefore, in a shoe which has an upper comprised of several
layers of material, the top layer will be considered the ESAU
when that layer covers the entire surface of the upper. In this
instance, the glass beads, sequins, pearls and an imitation gem
stone comprise virtually 100% of the external surface of the
center piece.
In view of the foregoing, it is our position that the style
85730 has an upper the ESAU of which is not over 90%
rubber/plastics.
HOLDING:
"Anne Michelle" styles 85772 and 85730 have uppers the
external surface areas of which are not over 90% rubber/plastics.
"Anne Michelle" styles 85772 and 85730 are dutiable at the
rate of 37.5% ad valorem under subheading 6402.99.30, HTSUS.
The protest should be denied. In accordance with Section
3A(11)(b) of Customs Directive 099 3550, dated August 4, 1993,
Subject: Revised Protest Directive, this decision, together with
the Customs Form 19, should be mailed by your office to the
protestant, through counsel, 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
Commercial Rulings Division