United States International Trade Commision Rulings And Harmonized Tariff Schedule
faqs.org  Rulings By Number  Rulings By Category  Tariff Numbers
faqs.org > Rulings and Tariffs Home > Rulings By Number > 1995 HQ Rulings > HQ 955038 - HQ 955367 > HQ 955111

Previous Ruling Next Ruling
HQ 955111

February 13, 1995

CLA-2 CO:R:C:M 955111 DFC


TARIFF NO.: 6402.99.30

District Director of Customs
300 South Ferry St
Room: 1001
Terminal Island, CA 90731

RE: Protest 2704-93-101982; Uppers, external surface area; Appurtenances, loosely attached; plausible upper material; Accessories /Reinforcements; Note 4(a) to Chapter 64; HRL's 950944,082661,085106,085381,087430; United States v. Castelazo & Associates; Inter-Pacific Corp., v. United States

Dear District Director:

This is in response to Protest 2704-93-101982 concerning your action in classifying and assessing duty on two styles of women's footwear manufactured in China. Samples of both styles were submitted for examination.


Style 85772

The sample, identified as "Anne Michelle" style 85772, is a woman's sandal with an open toe, an open heel, a sole of rubber/plastics material, and an upper of plastics (plastic- coated textile fabric). The upper consists of two triangular straps which emerge from either side of the midsole just forward of the heel and meet over the metatarsal arch. These straps are about 65 millimeters (mm) wide when they emerge and about 12 mm wide when they meet. At the point where they meet, the straps, still joined together, form a narrow vertical projection which reenters the sole between the big and second toes.

Set into the external surface of each strap are seven "gems" each comprised of a marquise-shaped "gemstone" of colored acrylic plastic in a slightly larger marquise-shaped metal setting. The "gems," fastened to the upper via prongs at each end, project about 2.5 mm above the surface of the upper. In order to hold the "gemstone" in place, the setting is wider at the base than at the top. This geometry means that the metal setting is visible on the external surface of the upper (ESAU) presenting an oval- within-an-oval image; this oval-shaped "ring" of metal makes a small contribution to the ESAU.

Style 85730

The sample, identified as "Anne Michelle" style 85730 is a sling-back thong sandal with an upper of plastic strips plus a center piece shaped like a seven-pointed star. The thong and two side pieces which comprise part of the upper are not directly attached to each other. Instead, the ends of all three are stitched to the lower layer of the center piece. The top surface of the lower layer of the center piece is textile. However, none of the lower layer of the centerpiece can be considered ESAU because it is completely covered by the upper layers of the center piece. The top layers of the center piece are also shaped like a seven-pointed star and are identical in size and shape to the lower layer which they completely cover. The top layers consist of a textile base which is completely covered by one large round plastic imitation "gem", seven plastic "pearls", and a quantity of plastic sequins, and quantities of round and cylindrical glass beads, all of which are stitched to the textile base.

The entry covering styles 85772 and 85730 was liquidated on March 26, 1993, under subheading 6402.99.30, Harmonized Tariff Schedule of the United States (HTSUS), with duty at the rate of 37.5% ad valorem. The protest was timely filed on June 21, 1993.

Protestant claims that the footwear is properly classifiable under subheading 6402.99.15, HTSUS, with duty at the rate of 6% ad valorem.


What is included in measuring the external surface area of the upper?

Do the shoes have uppers the external surface areas of which are over 90% rubber/plastics?


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 heading or notes do not otherwise require, according to [the remaining GRI's]." In other words, classification is governed first by the terms of the headings of the tariff and any relative section or chapter notes.

The competing provisions are as follows:

6402 Other footwear with outer soles and uppers of rubber or plastics:

Other footwear:
6402.99 Other:
Having uppers of which over 90 per- cent of the external surface area
(including any accessories or re- inforcements such as those mentioned in note 4(a) to this chapter) is rubber or plastics
(except footwear having a foxing or a foxing-like band applied or molded at the sole and overlapping the upper and except footwear designed to be worn over, or in lieu of, other footwear as a protection against water, oil, grease or chemicals or cold or inclement weather):

6402.99.15 Other . . . . . . . . . .

Other: 6402.99.30 Footwear with open toes or open heels; footwear of the slip-on type, that is held to the foot without the use of laces or buckles or other fasteners, the foregoing except footwear of subheading
6402.99.20 and except footwear having a foxing or a foxing- like band wholly or almost wholly of rubber or plastics applied or molded at the sole and overlapping the upper . .

Note 3 to chapter 64, HTSUS, reads, as follows:

3. For the purposes of this chapter, the expression "rubber or plastics" includes any textile material visibly coated (or covered) externally with one or both of those materials.

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 T.D. 89-80, 54 FR 35127, 35128 (August 23, 1989). In part, General EN (D) to chapter 64, HTSUS, provides that "[f}or the purposes of the classification of footwear in this Chapter, the constituent material of the uppers must also be taken into account . . . 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 . . .."

Style 85772

The protestant submitted a report prepared by a private laboratory, dated June 11, 1993, stating that the external surface area of the upper (ESAU) of style 85772 (including accessories and reinforcements) is 94.41% plastic and 5.59% metal.

With a letter dated February 11, 1994, the private laboratory submitted a report dated February 7, 1994, re- analyzing style 85772. This report noted that in its June 11, 1993 analysis, it had not measured the downward projection or thong, but had determined the total upper surface area from the point where the two straps met above the toes before turning down. However, pursuant to Customs instructions, the two sides of the downward projection and also the front surface where the two downward straps were joined were counted as ESAU. The rear surface of the downward projection was disregarded. The re- analysis revealed that the ESAU of style 85772 (including accessories and reinforcements) is 95.18% rubber or plastics and 4.82% metal.

The private laboratory attributes the difference in results reached in its second report to two factors: First, the areas of all 14 metal settings were measured, instead of measuring the area of one setting and multiplying by 14, as was done in the first report. Second, the downward projection was included as part of the ESAU in the second report, whereas in the first report it was disregarded.

Customs Laboratory Report 7-93-20460-001 dated February 23, 1993, covering a sample of style 85772 states that the ESAU of the upper, including accessories and reinforcements, is 89.1% rubber or plastics and 10.9% metal. In measuring the ESAU, the Customs laboratory measured only the narrow forward surfaces formed by the edges of the two plastic strips where they are sewn together.

At the request of the Customs National Import Specialist for footwear, the sample of style 85772 was reanalyzed to include the sides of the toe section as part of the ESAU, and supplemental Customs Laboratory Report 7-94-20435 was issued on January 27, 1994. The laboratory found that the ESAU is 89.7% rubber or plastics and 10.3% metal.

Our examination of the laboratory worksheets related to the subject sandal indicates that the analysis by the Customs laboratory was done in accordance with the U.S. Customs Service Laboratory Methods for Footwear. The ESAU was determined by two different analysts using a polar planimeter, and again using an image analysis system. Further, the ESAU was not measured in three dimensions. We find no error by the Customs laboratory in their measurement of the ESAU of style 85772.

With respect to the difference in analysis results between the Customs laboratory and the private laboratory, we note that two different samples of the same style and size were analyzed. The Customs laboratory sample was made for a right foot, and the private laboratory sample is a left foot sandal. The Customs laboratory also measured the plastic area of the protestant's sample and found it to be approximately 7% greater than the original sample.

In cases such as this, where a party submits an outside report that differs from the Customs laboratory report, the Customs report cannot be disregarded and, therefore, takes precedence over the outside report. Customs Directive 099 3820- 002 dated May 4, 1992. In administering the HTSUS, Customs must be consistent while classifying the same type of merchandise entering the U.S. To consistently classify products, the same laboratory analysis must be executed throughout Customs. Customs cannot rely on outside reports which may or may not utilize different testing methods and still remain consistent in its tariff classification. Additionally, Customs does not have any evidence that the merchandise tested by the outside laboratory is the same merchandise that was imported into the U.S. Therefore, Customs must rely on its own laboratory analysis when determining the proper tariff classification of the merchandise.

Counsel for protestant maintains that neither the "gems" nor the metal settings should even be included in measuring the ESAU of style 85772 following Headquarters Ruling Letter (HRL) 950944 dated April 20, 1992. In HRL 950944 which also concerned the classification of a women's sandal, Customs ruled that:

The fake jewelry ornamentation is excluded when determining the composition of the uppers in these two styles. We are of the opinion that the fake jewelry ornamentation is a loosely attached appurtenance which Customs has determined is not a part of the upper and is, therefore, not included in measuring the external surface area of the upper.

The fake jewelry ornament on the styles in HRL 950944 was loosely held to the straps which formed the upper by a staple or rivet. Such is not the case here. The imitation jewels are very firmly attached to the plastic strips by two prongs. Consequently, the imitation jewels are not loosely attached appurtenances and HRL 950944 is not controlling.

In view of the foregoing, it is our position that style 85772 has an upper the ESAU of which is not over 90% rubber/plastics.

Style 85730

Counsel for the protestant asserts that the glass beads are not part of the upper. Further, they are not even attached to the upper surface area. In fact, the glass beads constitute a part of a plastic applique that is attached to the upper. In support of its position that the glass beads are not part of the upper of the subject sandal, counsel cites the case of United States v. Castelazo & associates, 57 CCPA 16, C.A.D.1970 (1969), and Headquarters Ruling Letters (HRL's) 082661 and 085106 dated October 17, 1988 and September 22, 1989, respectively. 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. In HRL 085106 Customs ruled that glass beads sewn in patterns on the ESAU of a women's slip-on shoe are ornamentation on a textile upper and should not be considered as ESAU.

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 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."

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 disclosed 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)

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, removable of the outer layer of the centerpiece from style 85730 would clearly render the sandal unsalable if not unserviceable as footwear. Consequently, application of the test in this instance compels a finding that the plastic components [sequins, imitation gem, pearls] and the glass beads are parts of uppers rather than loosely attached appurtenances.

HRL 085106 cited by counsel as support for protestant's position is not relevant here. The shoes described therein have beads that have been sewn in patterns on an underlying textile that is viable upper material. The beading design does not cover the entire surface and where there are no beads the textile material is clearly seen. In other words, the intention was to enhance the textile upper with beads; not to obscure it. The same cannot be said for the submitted sample because there is very little space between beads. Further, these beads are meant to obscure the underlying material. The glass beads on the sample sandal occupy at least 10% of the ESAU.

Counsel for protestant argues that if the applique is considered part of the upper, it is not an accessory or reinforcement. We agree with counsel's conclusion in this regard, but we disagree with counsel's reasoning in reaching this conclusion. The center piece consisting of textile, plastic and glass form a portion of the upper (plastic straps form the remaining portion of the upper) and is ESAU. It is our observation that the glass beads, sequins, pearls and an imitation gem virtually cover the underlying textile material. It is to be noted that in those instances where the underlying material is considered to be a plausible upper material, it has been our position to consider the beads ESAU, if the gaps between them were de minimis. See HRL 085381 dated November 21, 1989.

As further support of our position that the center piece constitutes part of the upper and that the glass beads, sequins, pearls and an imitation gem stone comprise its ESAU, we note HRL 087430 dated October 22, 1990. In that ruling, we took the position that a layer which comprises all of the ESAU is in fact the ESAU even if there is a plausible upper material underneath. Therefore, in a shoe which has an upper comprised of several layers of material, the top layer will be considered the ESAU when that layer covers the entire surface of the upper. In this instance, the glass beads, sequins, pearls and an imitation gem stone comprise virtually 100% of the external surface of the center piece.

In view of the foregoing, it is our position that the style 85730 has an upper the ESAU of which is not over 90% rubber/plastics.


"Anne Michelle" styles 85772 and 85730 have uppers the external surface areas of which are not over 90% rubber/plastics.

"Anne Michelle" styles 85772 and 85730 are dutiable at the rate of 37.5% ad valorem under subheading 6402.99.30, HTSUS.

The protest should be denied. In accordance with Section 3A(11)(b) of Customs Directive 099 3550, dated August 4, 1993, Subject: Revised Protest Directive, this decision, together with the Customs Form 19, should be mailed by your office to the protestant, through counsel, no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with the decision must be accomplished prior to mailing of the decision. Sixty days from the date of the decision the office of Regulations and Rulings will take steps to make the decision available to Customs personnel via the Customs Rulings Module in ACS and the public via the Diskette Subscription Service, Freedom of Information Act and other public access channels.


John Durant, Director
Commercial Rulings Division

Previous Ruling Next Ruling

See also: