HQ 082737: Tariff classification of misses' dress shoes

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 082737

                                     April 13 1989



            CLA-2 CO:R:C:G  082737  c

            CATEGORY:  Classification

            TARIFF NO.:  6402.99.1570

            Ms. Jane A. Sheridan
            Import Department
            Pagoda Trading Co., Inc.
            1950 Craig Road
            St. Louis, Missouri  63146

            RE:  Tariff classification of misses' dress shoes

            Dear Ms. Sheridan:

                 In a letter dated April 25, 1988, you inquired as to the
            tariff classification under the Harmonized Tariff Schedule of
            the United States (HTSUSA) of certain misses' dress shoes
            manufactured in China and Taiwan.  Samples were submitted for
            examination.

            FACTS:

                 The samples designated as styles 6045G and 64657C are
            slip-ons with plastic uppers and plastic outsoles.  Both shoes
            have decorative textile bows attached to the vamp near the toe.

            ISSUE:

                 Are the textile bows accessories under the HTSUSA which
            would require their measurement as part of the external surface
            area of the uppers?

            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

















                                         - 2 -

            Chapter 64 states that "(t)he 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."

                 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 having merely ornamental value
            and no 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.

                 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.





















                                         - 3 -

            HOLDING:

                 In view of the foregoing, styles 6045G and 64657C are
            classifiable under subheading 6402.99.1570, HTSUSA, as other
            misses' 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, with duty at the rate of 6
            percent ad valorem.

                                        Sincerely,




                                        John Durant, Director
                                        Commercial Rulings Division






































            jackson library 082737c
            6cc:  Area Director, New York Seaport
            1cc:  James Sheridan, New York
            DFCahill:jaj:4/5/89