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HQ 082804


February 28, 1990

CLA-2 CO:R:C:G 082804DFC

CATEGORY: CLASSIFICATION

TARIFF NO.: 6402.99.15

Ms. Judy L. Cook
Manager, Import Dept.
Pagoda Trading Company, Inc.
1950 Craig Road
St. Louis, Missouri 63146

RE: Tariff classification of a men's shoe made in Taiwan

Dear Ms. Cook:

In a letter dated September 14, 1988, you asked us to reverse the result reached in New York Ruling Letter (NYRL) 824380 dated August 18, 1987. Specifically, New York Customs ruled that the men's shoe in issue was classifiable under the Tariff Schedules of the United States (TSUS), as other footwear which is over 50 percent by weight of rubber or plastics or over 50 percent by weight of fibers and rubber or plastics and having uppers of which over 90 percent of the exterior surface area is rubber or plastics with duty at the rate of 6 percent ad valorem. However, with respect to classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA), it was ruled that the shoe was classifiable under subheading 6404.19.35, HTSUSA, as other footwear with outer soles of rubber, plastics, leather or composition leather and uppers of textile material and dutiable at the rate of 37.5 percent ad valorem.

FACTS:

The sample which was the subject of NYRL 824380 was of latticework construction and had an upper of textile material which was plastic coated. It also had a side buckle closure and a rubber sole.

Classification of the men's shoe under item 700.56, TSUS, was based on a finding that the plastic coating on the upper visibly and significantly affected the surface of the upper within the meaning of Schedule 7, Part 1, Subpart A, Headnote 3, TSUS, following the criteria set forth in T.D. 81-219. Further, it was observed that the coating added significant stiffness to the fabric and imparted a slight luster.

You suggest that inasmuch as the shoe was considered to have an upper with an exterior surface area of plastic under the TSUS, it is difficult to understand how the material could be considered other than a plastic under the HTSUSA because it is a polyurethane.

ISSUE:

Does the shoe have an upper the external surface area of which is over 90 percent plastics for the purposes of classification under the HTSUSA?

LAW AND ANALYSIS:

Inasmuch as your request for reconsideration of NYRL 824380 was submitted more than a year after its issuance, there is no way for us to definitely confirm that the upper of the shoe ruled on is of the same material as the swatch submitted. Consequently, we cannot reverse that ruling.

However, we do agree with your position that the external surface area of the swatch submitted is a plastic rather than a textile material. The imitation denim appearance is achieved by calendering a fairly thick plastic layer that is atop the slightly napped woven fabric substrate, and then printing the raised plastic areas with a blue paint or ink. In the finished material, the appearance of the original, uncoated fabric (as seen in the selvedge) is completely hidden. We agree that this is a textile material whose external surface is visibly coated with plastic.

Therefore, the men's shoe having an upper composed of the swatch submitted with your letter of September 14, 1988, is considered to have an upper the external surface area of which is over 90 percent plastics.

HOLDING:

The Men's shoe is classifiable under subheading 6402.99.15, HTSUSA, as other footwear with outer soles and uppers of rubber or plastics, 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. The applicable rate of duty is 6 percent ad valorem.

Sincerely,

John Durant, Director

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