Decision on Application for Further Review of Protest No.5501-96-100094; ladies' slip-on shoes; Treasury Decision 93-88;Note 3 to chapter 64; heading 6402
Active· CBP ruling HQ 959127· Issued 1996-10-29
Ruling text
HQ 959127
October 29, 1996
CLA-2 RR:TC:TE 959127 jb
CATEGORY: Classification
TARIFF NO: 6402.99.3060
Port Director
U.S. Customs Service
P.O. Box 619050
Dallas, TX 75261-0950
RE: Decision on Application for Further Review of Protest No.
5501-96-100094; ladies' slip-on shoes; Treasury Decision 93-88;
Note 3 to chapter 64; heading 6402
Dear Sir:
This is a decision on an application for further review of a
protest timely filed on behalf of Remac, Inc., on February 29,
1996, against your decision regarding the classification of two
styles of ladies' slip-on shoes. All entries were liquidated on
February 9, 1996. A sample of one style, "Nicholas" was received
by this office for examination
FACTS:
The merchandise at issue consists of two styles of ladies'
slip-on shoes, "Texsan" and "Nicholas". The submitted style,
"Nicholas", is a low cut ladies' slip on shoe with an outer sole
and upper of plastic. The upper features an embroidered Santa
Claus and three metal stars at the top of the vamp, covering the
top of the wearer's foot. The textile embroidery also continues
down both sides of the shoe.
The Protestant claims both styles were incorrectly
classified by Customs in subheading 6402.99.3060, Harmonized
Tariff Schedule of the United States Annotated (HTSUSA), which
provides for "other footwear with outer soles and uppers of
rubber or plastics: other footwear other: other: 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; other: for women". In the
Protestant's opinion the proper classification for this
merchandise is in subheading 6402.99.1865, HTSUSA, which provides
for "other 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 (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: other: for women: other".
The Protestant states that the embroidery and metal
accessories featured on the upper of the subject shoes is not
part of the external surface area and as such, the subject shoes
are properly classified in subheading 6402.99.1865, HTSUSA. In
support of this claim the Protestant makes reference to Treasury
Decision (T.D.) 93-88, 27 Customs Bulletin No. 46, November 17,
1993, in which the "external surface area of the upper" is
defined as not including, among other things, any ornamentation.
ISSUE:
Whether the subject merchandise is properly classified in
subheading 6402.99.1865, HTSUSA, or subheading 6402.99.3060,
HTSUSA?
LAW AND ANALYSIS:
Classification of merchandise under the Harmonized Tariff
Schedule of the United States Annotated (HTSUSA) is in accordance
with the General Rules of Interpretation (GRI). GRI 1 requires
that classification be determined according to the terms of the
headings and any relative section or chapter notes. Where goods
cannot be classified solely on the basis of GRI 1, the remaining
GRI will be applied, in the order of their appearance.
Footwear definitions used by Customs in classifying footwear
under Chapter 64, HTSUS, were published in T.D. 93-88. Therein,
"external surface area of the upper" is defined, in pertinent
part, as:
The "external surface" of the upper is, in general, the
outside surface of what you see covering the foot (and leg,
if applicable) when the shoe is worn.
A. It does not include:
1. Accessories and reinforcements such as ankle
patches, edging, ornamentation, (i.e., tassels,
pompoms, or braids), buckles, tabs, eyelet stays, slide
fasteners, or similar attachments. Other examples
include the leather pieces sewn on top of the lower
part of the upper in basketball shoes, and "filled-in"
embroidery.
Heading 6402, HTSUS, provides for, other footwear with outer
soles and uppers of rubber or plastics. The legal notes to
chapter 64, HTSUS, state:
3. For the purposes of this chapter:
(a) the terms "rubber" and "plastics" include woven
fabrics or other textile products with an external
layer of rubber or plastics being visible to the naked eye; for
the purpose of this provision, no account shall be
taken of any resulting change of color; and
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;
In determining the proper classification for the subject
merchandise there are two requisite steps which must be followed.
First, a review of T.D. 93-88 (which provides pertinent
definitions for footwear) reveals that ornamentation and filled-in embroidery, among other things, are not included in the
determination of the external surface area of the upper. As
such, in the case of the subject merchandise the constituent
material having the greatest external surface remains the plastic
upper regardless of the embroidery and the accessories. We do
not dispute this fact. However, having an understanding of how
the "external surface area of the upper" is defined does not by
itself bring us to the appropriate provision in the tariff for
this merchandise. Thus, the second step involves compliance with
the appropriate subheading provision for the merchandise.
The Protestant claims that the appropriate provision for
this subheading is 6402.99.1865, HTSUSA. To qualify for that
particular classification the merchandise must meet all of the
terms of the subheading. These terms are as follows:
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 chapter 64) is rubber or
plastics; (Emphasis added)
EXCEPT:
a. footwear having a foxing or foxing-like band applied
or molded at the sole and overlapping the
upper;
b. 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.
In regard to the subject merchandise, although the terms of
the exceptions of the subheading do not concern this particular
merchandise, the merchandise must be in compliance with the
condition that the rubber or plastics upper constitute over 90
percent of the external surface area including accessories. As
defined in Note 4 to chapter 64, HTSUS, above, "accessories"
includes ornamentation. Thus, although the textile embroidery
and metal star accessories are not included in determining the
classification in heading 6402, HTSUS, it is included in the
determination at the subheading level (6402.99) of whether the
upper has an external surface area of over 90 percent rubber or
plastic.
Based on an examination of the subject merchandise by the
Customs Laboratory, the textile embroidery and accessories
constitute over ten percent of the exterior surface area of the
upper. As the combined embroidery and accessories constitute
over ten percent of the exterior surface of the upper, it thus
follows that the rubber or plastics constitutes less than 90
percent of the exterior surface area. Accordingly, the subject
merchandise is excluded from classification in subheading
6402.99.1865, HTSUSA, and is properly classified in subheading
6402.99.3060, HTSUSA.
HOLDING:
The protest should be denied in full and a copy of this
ruling should be appended to the CF 19 Notice of Action to
satisfy the notice requirement of section 174.30(a) Customs
Regulations.
In accordance with Section 3(A)(11)(b) of Customs Directive
099 3550-065, dated August 4, 1993, Subject: Revised Protest
Directive, this decision should be mailed by your office to the
Protestant 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.
Sincerely,
John Durant, Director
Tariff Classification Appeals
Division
Source: rulings.cbp.gov — ruling 959127, retrieved 2026-10-12T05:31:11Z, republished verbatim. This digest is informational; only CBP issues binding rulings.