HQ 952167: Protest no. 2704-91-104350; Footwear; Uppers, Externalsurface area; Accessories and reinforcements; T.D. 84-59

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 952167

                        August 23, 1993 

CLA-2  CO:R:C:M  952167 DFC

CATEGORY:   Classification

TARIFF NO.:   6402.99.30

District Director of Customs
300 South Ferry Street
Room 2017
Terminal Island
San Pedro, CA  90731

RE:  Protest no. 2704-91-104350; Footwear;   Uppers,  External
surface area;  Accessories and reinforcements;  T.D. 84-59

Dear Sir:

     This is in response to the Application for Further Review
of Protest no. 2704-91-104350 dated October 2, 1991, covering a
shipment of women's sandals manufactured in China.  The entry
covering this merchandise was liquidated on July 12,  1991. The 
protest was timely filed on October 2, 1991.  Samples were 
submitted for examination.

FACTS:

     The merchandise in issue consists of four styles of women's
sandals which are described as follows:

     Style 84001 is a women's Y-thong plastic sandal.  It has
     plastic sole, three plastic straps attached to the sole,
     and a plastic thong which is connected to the straps.  Each
     strap is encircled by a 1/2 inch metal tube on each side of
     the foot.  The tubes are capable of sliding along the
     surface of the straps.  Movable flat metal wire clips
     encircle the plastic straps and connect the three straps
     together on each side of the thong thus making the thong
     and straps a connected whole.

     Style 84002 is a women's Y-thong plastic sandal.  It has a
     plastic sole, four plastic straps attached to the sole, and
     a metal medallion attached to the plastic straps which
     connects a thong to the straps.  Each strap is encircled by
     a 1/2 inch gold tube on each side of the foot. 
  
                               -2-

     The tubes are capable of sliding along the surface of the
     straps. Movable flat metal wire clips encircle the straps
     so that the first strap is connected to the second, the
     second to the third, and so on so that the thong and straps
     are a connected whole.

      Style 84003 is a women's Y-thong plastic sandal.  It has a
      plastic sole, seven plastic straps attached to the sole, a
      plastic thong which is connected to the plastic straps,
      triangular metal clips encircling the plastic straps which
      are capable of being slid along the surface of the straps,
      and one triangular metal clip which connects the thong to
      the first plastic strap.  The metal clips are arranged so
      that two of the clips connect the first strap to the second
      strap, three clips connect the second strap to the third
      strap, and so on until finally one clip connects the sixth
      strap to the seventh, thus making the thong and straps a
      connected whole.

      Style 84034 is a women's plastic sandal.  It has a plastic
      sole, plastic straps attached to the sole, and a plastic
      heel strap.  A metal medallion connects a thong to the
      straps in a manner similar to the connection of the thong
      and straps in style no. 84002.  The straps are encircled
      with 1/2 inch wide metal tubes and the straps are connected
      with metal clips in the same way as in styles 84001 and
      84002.

     With the exception of style 84034, the entry covering these
women's sandals was liquidated under subheading 6402.99.30,
Harmonized Tariff Schedule of the United States (HTSUS), as other
footwear with outer soles and uppers of rubber or plastics,
other, having uppers of which not 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, other, footwear with open toes or open heels.   The
applicable rate of duty for this provision is 37.5% ad valorem.

     That portion of the entry covering style 84034 was
liquidated under subheading 6402.99.60, HTSUS, as other footwear
with outer soles and uppers of rubber or plastics, other, having
uppers of which not 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,
other, other, valued not over $3/pair.  The applicable rate of
duty for this provision is 48% ad valorem.




                               -3- 

     The protestant claims that the sandals are properly
classifiable under subheading 6402.99.15, HTSUS, as other
footwear with outer soles and uppers of rubber or plastics,
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.  The applicable rate of duty for this provision is 6.6%
ad valorem.

ISSUE:

     Are the metal components of the sandals (i.e., tubes, clips,
medallions or disks) considered loosely attached appurtenances
and precluded from measurement as external surface area of the
upper or are they accessories or reinforcements which must be
included in measurement of the external surface area of the
upper?

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.

     Note 4(a) to chapter 64, HTSUS, which is relevant here, 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 
               such as ankle patches, edging, ornamentation, 
               buckles, tabs, eyelet stays or similar            
               attachments[.]     










                               -4-

     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 also relevant here, provides 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. . . . 

     In support of its position that the metal components are not
parts of the uppers of the subject sandals, counsel for the
protestant cites the case of United States v. Castelazo &
Associates, 57 CCPA 16, C.A.D. 970 (1969), and Headquarters Ruling
Letter (HRL) 082661 dated October 17, 1988.  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.

     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 the case of 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." 









                              -5- 

     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 discloses 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)  













                              -6- 

     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, removal of the
metal components with the exception of the sliding tubes from the
sandals in issue would clearly render them unsalable if not
unserviceable as footwear.  Consequently, application of the test
in this instance compels a finding that the metal components are
parts of uppers rather than loosely attached appurtenances.  

     Counsel for the protestant asserts that even if Customs were
to consider the metal components parts of uppers, they would not
be taken into account in measuring the external surface area of
the uppers because they are not ejusdem generis with the
exemplars listed in note 4(a) to chapter 64.  Unlike the
enumerated items, the metal attachments are not structural,
functional or firmly attached.  We disagree.  The metal
attachments are structural, functional, and firmly attached. 
Specifically, styles 84002, 84003 and 84034 have metal
attachments which connect two or more of the plastic strips and
comprise a significant portion of the entire uppers.  Removal of
the disks (medallions) which are the larger of these attachments
(style nos. 84002 and 84034) means removal of a significant
portion of the "part of the shoe or boot above the soles."  See
General EN (D) to Chapter 64 description of upper.  In other
words, because these metal disks, are the only shoe part covering
a portion of the foot, they must be in fact upper material.  

     The flat metal wire clips on styles 84001, 84002, and 84034
and the triangular metal clips on style 84003 are to be taken
into account in measuring the external surface area of the uppers
because they are functional parts of the uppers which serve to
hold the plastic straps together.  In addition, one metal clip on
style 84003 serves to connect the thong to the first plastic
strap.  The aforementioned features, although attractive and
ornamental, are functional.                                     








                              -7- 
                              
     Counsel for the protestant argues that the metal components
of the sandals are on different planes than the uppers, and this
difference is greater than the difference in planes on the shoes
where the tongue was held not be part of the upper.  See T.D. 84-
59.  In those instances where the tongue was held not to be part
of the upper, it was not only on a plane lower than a portion of
the upper but was also partially or wholly covered by laces and
eyelet facings or stays.  This is not the case here.  The metal
components are not wholly or partially covered by any other
material.  

     Additionally, counsel for protestant claims that Customs
classification of style 84034 under subheading 6402.99.60, HTSUS,
as "other footwear" rather than under subheading 6402.99.30,
HTSUS, as footwear "with open toes or open heels" is incorrect.  
We agree with counsel on this point noting that these shoes have
"open toes" which requires their classification under subheading
6402.99.30, HTSUS.

     In summary, it is our position that inclusion of the metal
components as external surface area of the uppers would preclude
classification of the sandals under subheading 6402.99.15, HTSUS,
because not over 90% of that area would be rubber or plastics.  

HOLDING:

     The medallions or disks which are in fact upper material are
to be included in the measurement of the external surface area of
the uppers at both the international level (four digit) and the
national level (eight digit).  The remaining metal components of
the sandals including the tubes are accessories or reinforcements
within the meaning of Note 4(a) to Chapter 64, HTSUS, and must be
included in the measurement of the external surface area of the
uppers at the national level. 

     Style 84001, 84002, 84003, and 84034 are classifiable under
subheading 6402.99.30, HTSUS.



                               -8-

     You should deny the protest, except to the extent
reclassification of style no. 84034 as indicated above results in
a partial allowance.  A copy of this decision should be attached
to the Customs Form 19 and provided to the protestant, through
counsel, as part of the notice of action on the protest.


                     
                                   Sincerely, 


                                   John Durant, Director
                                   Commercial Rulings Division