CLA-2 CO:R:C:M 952815 DFC
District Director of Customs
Patrick V. McNamara Building
477 Michigan Ave
Detroit, Michigan 48266
RE: Protest 3801-2-102728; Sandals, beachcomber; Accessories
and reinforcements; 081297
Dear Sir:
This is in response to the Application for Further Review of
Protest no. 3801-2-102728 dated August 19, 1992, covering a
shipment of beachcomber sandals manufactured in the People's
Republic of China. A sample was submitted for examination.
FACTS:
The women's beachcomber sandals, stock no. 841416, have a
rubber/plastic sole and a "Y" configuration textile upper which
measures 12" long by 1" wide to which is stitched a leather strip
overlay. There is also a smaller strap which measures 2-1/2 "
long by 1/2" wide and is composed entirely of textile material
which is used to connect the main strap to the sole.
The entry covering this footwear was liquidated under
subheading 6404.19.35, Harmonized Tariff Schedule of the United
States (HTSUS), as footwear with outer soles of rubber, plastics,
leather or composition leather and uppers of textile materials,
footwear with outer soles of rubber or plastics, other, other.
The applicable rate of duty for this provision is 37.5% ad
valorem.
The protestant maintains that these beachcomber sandals are
properly classifiable under subheading 6403.99.75, HTSUS, as
footwear with outer soles of rubber, plastics, leather or
composition leather and uppers of leather, other footwear, other,
for other persons, valued not over $2.50/pair. The applicable
rate of duty for this provision is 15% ad valorem.
-2-
ISSUE:
Are the leather overlays stitched over the textile straps
[uppers] considered accessories or reinforcements within the
purview of note 4(a) to Chapter 64?
Does subheading 6404.19.15, HTSUS, more specifically
describe the beachcomber sandals than subheading 6404.19.25-35,
HTSUS?
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 headings or notes do not otherwise require, according to
[the remaining GRI's taken in order]." In other words,
classification is governed first by the terms of the headings of
the tariff and any relative section or chapter notes. GRI 6,
HTSUS, requires that the GRI's be applied at the subheading level
on the understanding that only subheadings at the same level are
comparable. The GRI's apply in the same manner when comparing
subheadings within a heading.
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 54 FR 35128 (August 23, 1989). General EN (D) to Chapter 64
which is relevant here reads in pertinent part as follows:
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.
-3-
Noting note 4(a) to chapter 64, HTSUS, the protestant
asserts that because leather covers a vast majority of the
external surface area of the upper, the sandals have uppers of
leather for tariff purposes.
Customs has taken the position that the term "accessories or
reinforcements," although not fully defined, includes any
additional material added to an otherwise completed upper. In
this instance the leather strips stitched over the textile uppers
of the sandals meet this definition of the term "accessories or
reinforcements." Consequently, following note 4(a) to chapter
64, the sandals have uppers of textile material which precludes
their being classified under subheading 6403.99.75, HTSUS.
GRI 3(a), HTSUS, provides in part as follows:
3. When, by application of rule 2(b) or for any other
reason, goods are, prima facie, classifiable under two
or more headings, classification shall be effected as
follows:
(a) The heading which provides the most specific
description shall be preferred to headings
providing a more general description. . . .
The sandals are described by two equally indented
descriptions within subheading 6404.19, HTSUS. The first
description under subheading 6404.19.15 provides for "[f]ootwear
having uppers of which over 50 percent of the external surface
area (including any leather accessories or reinforcements such as
those mentioned in note 4(a) to this chapter) is leather." The
second description under subheading 6404.19.25-35, HTSUS,
provides for "[f]ootwear with open toes or open heels; footwear
of the slip-on type, . . .
With reference to GRI 3(a), we note that in Headquarters
Ruling Letter 081297 dated November 25, 1988, Customs took the
position that subheading 6404.19.15, HTSUS, is a more specific
provision for certain beachcomber sandals having nylon uppers
with stitched leather overlays than subheading 6404.19.25-35,
HTSUS.
-4-
Your reliance on New York Ruling Letter 856105 (NYRL) dated
September 24, 1990, as support for the position that the sandals
in issue are classifiable under subheading 6404.19.35, HTSUS, is
misplaced. That ruling concerned the classification of
beachcomber sandals having plastic overlays over textile rather
than leather overlays over textile which is the case here. GRI
3(a), supra, was not applicable to the facts in NYRL 856105.
Specifically, the beachcomber sandals were not prima facie
classifiable under subheading 6404.19.15, HTSUS, and subheading
6404.19.35, HTSUS, because their uppers did not have an external
surface area of over 50 percent leather which is a requirement
for classification under subheading 6404.19.15, HTSUS.
HOLDING:
The beachcomber sandals are classifiable under subheading
6404.19.15, HTSUS, as footwear with outer soles of rubber,
plastics, and uppers of textile materials, other, footwear having
uppers of which over 50 percent of the external surface area
(including any leather accessories or reinforcements such as
those mentioned in note 4(a) to this chapter) is leather. The
rate of duty for this provision is 10.5% ad valorem.
Since reclassification of the merchandise as indicated above
will result in a lower rate of duty than claimed, you should
allow the protest in full. A copy of this decision should be
attached to the Customs Form 19, and provided to the protestant
as part of the notice of action on the protest.
Sincerely,
John Durant, Director
Commercial Rulings Division
6cc Area Dir NY Seaport
1cc Reg Comm NY Reg
2cc Chief C.I.E. Branch
1cc Regulatory Trade Programs Div
1cc James Sheridan NY Seaport