HQ 082661: Tariff classification of footwear with loosely held appurtenances

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                                     HQ 082661

                                  October 17, 1988




          CLA-2 CO:R:C:G  082661 DSN  828908

          CATEGORY:  Classification

          TARIFF NO.:  6402.99.15

          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