Footwear; Sandals; External Surface Area of the Upper; Accessories or Reinforcements; Ornamentation; Chapter 64, Note 4(a); HQ 087430; HQ 085106

HQ 952363 August 19, 1992 CLA-2 CO:R:C:M 952363 DWS CATEGORY: Classification TARIFF NO.: 6404.19.35 Mr. John Casanas AJ International, Inc. Room 308 181 South Franklin Avenue Valley Stream, NY 11581 RE: Footwear; Sandals; External Surface Area of the Upper; Accessories or Reinforcements; Ornamentation; Chapter 64, Note 4(a); HQ 087430; HQ 085106 Dear Mr. Casanas: This is in response to your letter of July 2, 1992, on behalf of Cherries Footwear, Inc., concerning the classification of women's sandals under the Harmonized Tariff Schedule of the United States (HTSUS). FACTS: The merchandise consists of women's thong sandals with plastic soles. The thong upper is made from textile strips which are sewn to a plastic liner. Loosely tack-stitched to and covering much of the textile material are plastic sequins and large and small plastic beads. However, the sequins and beads do not cover the entire textile area. The portion of the thong that passes between the toes is covered by a plastic tube. ISSUE: What material makes up the external surface area of the sandal's upper? Are the sequins and beads "accessories or reinforcements" for classification purposes? LAW AND ANALYSIS: Classification of merchandise under the HTSUS is in accordance with the General Rules of Interpretation (GRI's), taken in order. GRI 1 provides that classification is determined according to the terms of the headings and any relative section or chapter notes. Chapter 64, note 4(a), HTSUS, 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. HQ 085106, dated September 22, 1989, dealt with the classification of a beaded shoe from China. In the ruling, it was stated that: [a]n examination of the sample reveals that the beads are laid out in specific designs. The underlying textile material can be clearly seen and it is apparent that the manufacturer's intention was to enhance the textile upper with the glass beads and not to obscure it. It is our opinion that the beads are ornamentation on a textile upper and should not be considered as external surface area of the upper. The subject sandal is similar to the shoe in HQ 085106. Although the sequins and beads cover much of the textile material, it is our position that they are meant to enhance the textile and not obscure it. In fact, the color of the sequins blend in with the color of the textile strips. Therefore, we find that the sequins are ornamentation and, under chapter 64, note 4(a), HTSUS, are "accessories or reinforcements". We do note HQ 087430, dated October 22, 1990, which dealt with the classification of athletic footwear with uppers of vinyl underlay covered with leather components. In the ruling, it was stated that: [u]pon reconsideration, it is now our position that a material which comprises 100 percent of the external surface of an upper must be more than mere accessories and reinforcements, even though it may have underneath it a plausible upper material. . . Noting that exceptions may evolve with new designs, we would agree that on a case by case basis a material in a shoe upper which is completely covered by other material should usually not be considered in external surface area measurements, and that the other material should be considered to be the material of the external surface. It is our position that the holding in HQ 087430 does not apply to the subject sandal. The sequins and beads only partially cover the textile strips. They do not comprise 100 percent of the external surface area of the upper. Because of this, the textile strips are definitely more than a plausible upper material. They make up the external surface area of sandal's upper. Therefore, the subject sandal is classifiable under subheading 6404.19.35, HTSUS, which provides for: "[f]ootwear with outer soles of rubber or plastics and uppers of textile materials: [o]ther: [f]ootwear with open toes or open heels: [o]ther." HOLDING: The subject women's sandals are classifiable under subheading 6404.19.35, HTSUS. The general, column one rate of duty is 37.5 percent ad valorem. Sincerely, John Durant, Director Commercial Rulings Division