HQ 089992: Protest 3001-91-100713; Infants shoes; accessories and reinforcements; loosely attached appurtenances; subheading 6402.99.15; HRL 082661; HRL 080377; HRL 088725; NYRL 809843; NYRL 812613

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 089992

                          May 11, 1992

CLA-2 CO:R:C:M 089992  NLP

CATEGORY:  Classification

TARIFF NO.: 6402.99.60

District Director
U.S. Customs Service
909 First Avenue, RM 2039
Seattle, WA 98174

RE:  Protest 3001-91-100713; Infants shoes; accessories and
     reinforcements; loosely attached appurtenances; subheading
     6402.99.15; HRL 082661; HRL 080377; HRL 088725; NYRL 809843;
     NYRL 812613

Dear Sir:

     The following is our decision regarding the Protest and
Request for Further Review No. 3001-91-100713, dated June 20,
1991.  At issue is the classification of infants dress shoes
under the Harmonized Tariff Schedule of the United States
(HTSUS).  Samples of the shoes were submitted for our
examination.

FACTS:

     The subject footwear is infants dress shoes that have a
rubber/plastic upper and outer sole.  The upper has an ornamental
lace strip sewn to the top line seam of the upper.  In the middle
of the lace strip is a sewn-on textile ribbon with a simulated
pearl.

     Your office liquidated entries covering these shoes under
subheading 6402.99.60, HTSUS, which provides for other footwear
with outer soles and uppers of rubber or plastics, other
footwear, other, other, other, valued not over $3/pair.

    The importer contends that the shoes should be classified in
subheading 6402.99.15, HTSUS, 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 ..., other.  


ISSUE:    

     Are the subject shoes classified in subheading 6402.99.60,
HTSUS, or in subheading 6402.99.15, HTSUS.

LAW AND ANALYSIS:

     Subheading 6402.99.15, HTSUS, 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 ..., other.  

     Note 4(a) to Chapter 64, HTSUS, states 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. 

     In order to determine whether the subject footwear is
classifiable under subheading 6402.99.15, HTSUS, we must
determine whether the ornamental lace strip sewn to the top line
seam of the upper should be considered to be an "accessory or
reinforcement" as defined in Note 4(a) to Chapter 64, HTSUS, or a
"loosely attached appurtenance".  If it is considered to be an
accessory or reinforcement, the external surface area of the
upper (including accessories or reinforcements) is not over 90
percent rubber or plastics, then the shoes are classifiable under
subheading 6402.99.60-90, HTSUS, depending on value per pair.    

     If the ornamental lace strip is considered to be a loosely
attached appurtenance, the external surface area of the upper
(including accessories or reinforcements) is over 90 percent
rubber or plastics, then the shoe is classifiable under
subheading 6402.99.15, HTSUS.

     HRL 082661, dated October 17, 1988, dealt with the
classification of a women's plastic sandal that had a plaid
textile bow sewn to the upper.  The issue was whether the plaid
textile bow was a loosely attached appurtenance included when
measuring the constituent material of the shoe's external surface
area.  HRL 082661 stated that: 

     ...subheading 6402.99.15, HTSUSA, does not require that
     everything that was excluded under Note 4(a) [to Chapter 64,
     HTSUS] must be added back in determining classification
     under that provision.  If there was meant to be an add back
     requirement, the superior heading could have read,
     "including all accessories or reinforcements excluded by
     reason of Note 4(a)".  Instead, the heading states
     accessories or reinforcements "such as" those mentioned in
     Note 4(a).

     This ruling stated that loosely attached appurtenances were
not part of the upper at all and therefore, were not added back
in when measuring the external surface area of the upper. 
Therefore, HRL 082661 held that the plaid textile bow sewn onto
the upper was a loosely held appurtenance and the shoe was
classified in subheading 6402.99.15, HTSUS.

     The protestant contends that the lace on the subject shoe is
a loosely attached appurtenance and should not be included when
measuring the external surface area of the shoe's upper.    
Protestant argues that HRL 080337, dated June 3, 1987, supports
his position.  HRL 080337 dealt with the classification of a
woman's boot that had a diamond shaped ornament attached on the
top of each side of the boot's shaft in a stud-like fashion.  A
V-shaped leather fringe was attached to the ornament.  Leather
fringes were inserted under the overlay on both sides of the
boot.  Moreover, the fringes were held in place by the same
stitching that secured the overlay.  HRL 080337 held that the
leather fringes were loosely attached appurtenances as they were
not attached in such a way to cover the underlying plastic
surface of the boot and they were not wholly attached to the
exterior surface.  

     While the lace on the subject shoe is not wholly attached to
the exterior surface and allows the underlying plastic to be
seen, there are other criteria Customs now considers in
determining whether an item is considered a loosely attached
appurtenance or not.  As the cases below demonstrate, Customs now
considers the amount of stitching holding the item to the upper
and whether the shoe will be damaged when the item is removed. 
Moreover, it is hard to tell from the description of the shoe in
HRL 080377 the amount of stitching in the overlay.  It is likely
that the overlay was attached with a few stitches and therefore,
the fringes would have been loosely attached.  It is our position
that the fringes are more akin to the bows in the cases below and
are not like the lace in the subject shoe.  

     HRL 088725, dated May 30, 1991, dealt with the issue of
whether a textile bow attached to the upper of a woman's high
heel slip-on shoe was excluded when determining the external
surface area of the upper.  This ruling held that since the
fabric bow was attached by gluing and small staples and could be
removed without rendering the shoe unserviceable, the bow was
loosely attached.  Therefore, the bow was excluded when measuring
the external surface area of the shoe's upper. 



     In determining that the textile bow was a loosely attached
appurtenance, HRL 088725 discussed two rulings that dealt with
the issue of loosely attached appurtenances.  The first ruling,
New York Ruling Letter (NYRL) 809843, dated August 1, 1984, dealt
with the classification of a patent vinyl dress shoe with a
textile bow attached to its upper by means of a rivet.  NYRL
809843 stated the following:

          In the past, the Customs Service has ruled that items
          such as strips, buttons, pompoms, etc. which are
          attached to the upper by rivets, gluing, stitching
          (tacked) at one or two points and which serve as
          decorations are not to be treated as part of the
          exterior surface area of the upper if their removal
          does not render the shoe unserviceable as footwear.  

The bow was considered a decoration and its removal did not
render the footwear unserviceable.  As a result, the bow was
excluded in determining the classification of the shoe's upper. 

     The second ruling, NYRL 812613, dated March 20, 1985, dealt
with the classification of an infant's plastic dress shoe with a
decorative fabric bow at the top of the vamp.  This ruling stated
that since the decorative fabric bow was attached by gluing and a
few stitches, and could be removed without rendering the shoe
unserviceable, it was considered a loosely attached appurtenance. 
Therefore, the bow was not counted in determining the external
surface area of the upper.

     Unlike the fabric bows in the above cases, the lace on this
shoe is attached by continuous stitching; not just one or a few
stitches.  Furthermore, the lace on the shoe is attached by the
same seam which holds the fabric top line edging in place.  This
fabric edging encircles the entire shoe's top line.  In addition,
to remove the lace, you must first remove the top line trim.  The
removal of the stitches attaching the lace to the upper would
result in numerous holes in the upper and the shoe would be
unserviceable.  As a result, it is our position that the lace
trim is not a loosely attached appurtenance and it should not be
excluded when measuring the external surface area of the upper. 

     A U.S. Customs laboratory analysis was performed on a sample
of the shoe to determine the percentage of the upper attributable
to the lace and to the textile top line trim.  In making its
determination, the laboratory excluded the following: the bow,
bead, buckle and strap.  The results of Laboratory Report No. 3-
92-20379-001, dated January 24, 1992, are as follows:
     
               75 % plastics material 
               13 % woven textile trim
               12 % lace, corrected for perceived open spaces 

     When the lace and textile trim are added together, they
comprise more than 10 percent of the external surface area of the
upper.  Therefore, when they are included in the measurement of
the external surface area of the shoe's upper, the shoe's upper
is less than 90 percent rubber/plastic.  Accordingly, the infants
dress shoes are classified in subheading 6402.99.60, HTSUS.  We
note that, even if we found the lace to be a loosely attached
appurtenance, the shoe would still be classified in subheading
6402.99.60, HTSUS, as the textile top line trim represents over
10% of the upper's external surface area.   

HOLDING:

     The protest should be denied in full.  A copy of this
decision should be attached to the Customs Form 19 and provided
to the protestant as part of the notice of action on the protest.

                                   Sincerely,


                                   
                                   John Durant, Director
                                   Commercial Rulings Division