CLA-2 CO:R:C:G 082661 DSN 828908
Mr. John Auersperg
President
Fortune Footwear Inc.
110 Greene Street, Suite 201
New York, New York 10012
RE: Tariff classification of footwear with loosely held
appurtenances
Dear Mr. Auersperg:
This is in response to your letter of March 16, 1988, in
which you requested tariff classification on footwear with
loosely held appurtenances. The Harmonized Tariff Schedule of
the United States Annotated (HTSUSA) will become effective
commencing January 1, 1989. This ruling letter concerns HTSUSA
classification only. A sample was submitted for examination.
FACTS:
The sample, style 9251, is a women's Y-thong plastic sandal.
The sandal features a plaid padded textile insole, a unit molded
plastic outer sole and a plaid textile bow sewn to the upper.
ISSUE:
Are loosely held appurtenances included in the measurement
of the external surface area pursuant to subheading 6402.99.15,
HTSUSA?
LAW AND ANALYSIS:
Subheading 6402.99.15 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) to
Chapter 64 states that "(t)he material of the upper shall be
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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."
It is our opinion that subheading 6402.99.15 does not
require that everything that was excluded under Note 4(a) 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).
It is our opinion that loosely attached appurtenances are
not part of the upper at all and therefore are not added back in
measuring the external surface area. The courts have
consistently held under the Tariff Schedules of the United States
Annotated (TSUSA), that loosely attached appurtenances are
excluded when measuring the external surface area of the upper.
See. e.g. United States v. Castelazo & Associates A/C Stonewall
Trading Company, 57 CCPA 16, C.A.D. 970 (1969), affirming 60
Cust. Ct. 650, C.D. 3486 (1968); where fur trimmed buttons
attached to the uppers and having merely ornamental value and did
not contribute any utility, were not parts of the upper for
tariff purposes. T.D. 70-238(19) dated October 15, 1970 (1970);
HRL 051937 dated June 6, 1977; N.Y. Ruling letter 807388 dated
July 31, 1984. As a result of these decisions, Customs adopted
the practice of excluding loosely attached appurtenances from the
measurement of the external surface area of the upper. We
believe this practice should continue under the HTSUSA for
uniformity as well as achieving tariff rate neutrality. We note
that the guidelines for the conversion to the HTSUSA required
that to the extent practicable and consonant with sound
nomenclature principles, the Commission should avoid changes in
rates of duty on individual products.
Moreover, this approach is consistent with HRL 081305 of
March 10, 1988. HRL 081305 dealt with among other things,
whether shoelaces should be considered as part of the external
surface area of the upper. Shoelaces did not appear to be
"ejusdem generis" with the examples in Note 4(a), because those
examples are presumably firmly affixed to the balance of the
upper. Id. at p.2. Consequently, the shoelaces at issue were
not part of the upper and were not considered when measuring the
external surface area.
HOLDING:
In view of the foregoing, style number 9251, is classified
under subheading 6402.99.15, HTSUSA, which provides for other
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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 plastic, dutiable at the rate of 6 percent
ad valorem.
This represents the present position of the Customs Service
regarding the dutiable status of the merchandise. If there are
any changes before the effective date, this advice may not
continue to be applicable.
Sincerely,
John Durant, Director
Commercial Rulings Division