Revocation of New York Ruling Letter N087097; footwear

HQ H092482 April 12, 2011 CLA-2 OT:RR:CTF:TCM H092482 CkG CATEGORY: Classification TARIFF NO: 6402.99.31 Mr. John M. Peterson Neville Peterson, LLP 17 State Street 19th Floor New York, NY 10004 RE: Revocation of New York Ruling Letter N087097; footwear Dear Mr. Peterson: This is in response to your letter of January 22, 2010 on behalf of your client, ESNY Division of Totes-Isotoner Corporation, requesting the reconsideration of New York Ruling Letter (NY) N087097, dated December 22, 2009. At issue in that ruling was the classification of footwear under the Harmonized Tariff Schedule of the United States (HTSUS). U.S. Customs and Border Protection (CBP) classified the merchandise in subheading 6402.99.40, HTSUS, which provides for other footwear with outer soles and uppers of rubber or plastics, with open toes or heels. Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. §1625(c)(1)), as amended by section 623 of Title VI, notice proposing to revoke NY N087097 was published on June 23, 2010, in Volume 44, Number 26, of the Customs Bulletin. One comment was received in support of the proposed action, and is addressed below. FACTS: In NY N087097, the subject merchandise was described as follows: The three submitted samples which you identify as Style #2H070, Style #2H048 and Style #2H073, are all ladies thong sandals with outer soles and uppers of rubber/plastics. They all have “V” or “Y” shaped straps with plugs at their ends that penetrate the sole and a thong which goes between the first and second toes. You state in your letter that all three sandals have metal ornamentation attached to the upper. This ornamentation accounts for more than 10 percent of the external surface area of the upper. The soles are not of uniform thickness and they all have separate leather insoles. ISSUE: Whether the instant sandals are classified in subheading 6402.99.31, as footwear having uppers of which over 90% of the external surface area is rubber or plastics, or in subheading 6402.99.40, HTSUS, as “other” footwear—i.e., with an ESAU of less than 90% rubber or plastics. LAW AND ANALYSIS: Classification of goods under the HTSUS is governed by the General Rules of Interpretation (GRI). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative section or chapter notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs 2 through 6 may then be applied in order. The HTSUS provisions at issue are as follows: 6402: Other footwear with outer soles and uppers of rubber or plastics: Other footwear: 6402.99: Other: 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 (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): Other: 6402.99.31: Other . . . Other: Other: 6402.99.40: 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 . . . * * * * * You contend that the subject footwear should be classified in subheading 6402.99.31, HTSUS, as footwear having uppers of which over 90% of the external surface area is rubber or plastics. To that end, you claim that NY N087097 erroneously considered the attached metal ornamentation in its calculation of the external surface area of the upper. Note 4(a) to Chapter 64, HTSUS, provides that 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. Subheading 6402.99.31, HTSUS, however, provides for footwear having uppers of which over 90 percent of the external surface area is rubber or plastics, including any accessories or reinforcements such as those mentioned in note 4(a) to this chapter. In other words, for the purposes of this subheading, we must disregard the instruction in note 4(a) to exclude such accessories and reinforcements from the calculation of the ESAU. However, CBP has generally held that the noted subheadings do not require that everything that was excluded under Note 4(a) must be taken into account in determining classification under those provisions. Instead “loosely attached appurtenances” are not part of the upper and therefore are not considered in the external surface area measurement. See e.g., HQ H084599, dated February 1, 2010; HQ 960625, dated September 17, 1999; HQ 952167, dated August 23, 1993; HQ 089992, dated May 11, 1992; and HQ 084067, dated June 13, 1989. In determining whether or not an item is a loosely attached appurtenance, (LAA), CBP will take the following factors into consideration: LAA must be purely decorative, not functional no matter how minor or non-essential. An appurtenance must be secured by minimal stitching (one or two stitches), tacking or a single rivet. Removal must not result in excessive holes rendering upper unserviceable. LAAs are generally not measurable in any objective way (tassels, pom-poms) Examples of LAAs are textile flowers, fabric bows secured with minimal (one or two) stitching or a single rivet or tack, pom-poms, non-functional three-dimensional buttons and tassels. Sequins, beads, buckles, studs, decorative rivets, sewn down flowers or bows, imitation jewels, rhinestones, shells, wooden decorations etc. are generally accessories or reinforcements. See e.g; NY N048159, dated January 6, 2009; NY N046199, dated December 10, 2008; N046819, dated December 19, 2008; and NY N047259, dated December 19, 2008. The metal ornamentation attached to the upper is purely decorative and not functional. You state that the metal ornaments are all affixed by a single screw. For those styles where the ornament is attached to the upper at a single small point, we agree that they are “loosely attached” for the purposes of the second requirement. We agree that removal of the ornaments would not result in excessive holes or otherwise render the upper unserviceable. Unserviceable is interpreted to mean incapable of being used or unfit for use. As the shoes are completely usable without their decorative attachments, they are therefore serviceable. We further agree that the ornaments are not easily measurable due to their irregular shape and surface area. Although the typical examples of LAAs consist of textile tassels, flowers, bows, etc., whereas studs, beads, and other similar articles of metal or jewelry are typically regarded as accessories or reinforcements, the instant ornaments are not attached in the manner of a buckle or stud. They are not embedded in the shoe, nor are they attached at multiple points. CBP has also considered glass or metal ornaments attached in a similar manner to constitute loosely attached appurtenances in prior rulings. See e.g., HQ H084599, dated February 1, 2010; NY N019702, dated December 3, 2007; NY M86620, dated October 18, 2006; NY L89802, dated February 3, 2006. As they meet the criteria for loosely attached appurtenances laid out in prior rulings, the decorative attachments are to be considered loosely attached appurtenances and excluded from the calculation of ESAU. This exclusion brings the total ESAU to more than 90% rubber or plastic. The instant sandals are thus classified in subheading 6402.99.31, HTSUS. Commenter inquires as to whether appurtenances can be secured by means of one or two screws, rivets, or other points of attachment. Our rulings have held that in order to be considered “loosely attached” an ornament must be attached to the upper by one or two stitches, or a single rivet or tack. We consider the limit of one rivet to apply to screws as well. Thus an ornament attached by more than one screw would not be considered a loosely attached appurtenance. HOLDING: The instant sandals are classified in heading 6402, HTSUS, specifically subheading 6402.99.31, HTSUS, which provides for “Other footwear with outer soles and uppers of rubber or plastics: Other footwear: Other: 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 (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): Other: Other.” The 2010 general, column one rate of duty is 6% ad valorem. Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on World Wide Web at http://www.usitc.gov/tata/hts/. EFFECT ON OTHER RULINGS: NY N087097, dated December 22, 2009, is hereby revoked. Sincerely, Myles B. Harmon, Director Commercial and Trade Facilitation Division