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HQ 084413


July 28, 1989

CLA-2:CO:R:C:G 084413 SR

CATEGORY: CLASSIFICATION

TARIFF NO.: 6402.99.70

Ms. Yvonne Williams
BBC International Ltd.
19 West 34th Street
New York, N.Y. 10001

RE: Classification of a child's oxford shoe

Dear Ms. Williams:

This is in response to your letter dated April 27, 1989, requesting the tariff classification of a child's PVC oxford under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). A sample produced in Taiwan was submitted.

FACTS:

The merchandise at issue is a child's oxford shoe. It has a unit molded bottom cemented to a plastic upper. The upper has plastic coated textile overlays on the toe, the outside front quarter, and the eyelet stays. It is a tie shoe with 3 eyelets per side. There are two decorative bows attached to the side of the shoe.

ISSUE:

Whether the external surface of shoe at issue is over 90 percent of rubber or plastics, and classifiable under subheading 6402.99, HTSUSA.

LAW AND ANALYSIS:

Subheading 6402.99, HTSUSA, provides for 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 (except footwear having a foxing or a foxing-like band 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).

Under this provision the textile fabric, but not the loosely attached bows, are included in the external surface area of the shoe. The plastic coating on the textile material is not sufficient to be considered plastic for purposes of measuring the external surface area. Chapter 59 of the HTSUSA applies to impregnated, coated, covered or laminated textile fabrics. Note 2(a)(1) to Chapter 59, HTSUSA, states that the subheading that provides for textile fabrics impregnated, coated, covered or laminated with plastics applies to fabrics other than those in which the impregnation, coating or covering cannot be seen with the naked eye, no account being taken of a resulting change of color.

HRL 082993 dated November 25, 1988 dealt with fabric raincoats with an application of plastics material. This ruling stated:

It is our view that the wording of Note 2(a)(1) ("visible to the naked eye") is a clear expression by the drafters of the Harmonized System that a significant, if not substantial, amount of material must be added to a fabric for it to be considered "impregnated, coated, or covered."

Therefore, following the strict wording of Note 2(a)(1), for a fabric to be considered "impregnated, coated, or covered" within that requirement, the plastics material added to the fabric must be visibly distinguishable from that fabric without the use of magnification.

The plastic on the textile of the shoes at issue is not substantial enough to be considered a plastic external surface because it is not visible to the naked eye. Because the plastic coated textile accessories that are included in the surface area are not considered to be plastic, the shoe does not have an exterior surface area of over 90 percent of rubber or plastics. However, the exterior surface area is primarily of plastics and the shoe will be considered to have an exterior surface area of plastics.

HOLDING:

The merchandise at issue is classifiable under subheading 6402.99.70, HTSUSA, as other footwear with outer soles and uppers of rubber or plastics, other footwear, valued over $3 but not over $6.50 a pair. The rate of duty is 90 cents a pair plus 37.5 percent ad valorem.

Sincerely,

John Durant, Director

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