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HQ 084711


March 21, 1990

CLA-2:CO:R:C:G 084711 SR

CATEGORY: CLASSIFICATION

TARIFF NO.: 6404.19.3560

Mr. Robert D. Stang
Grunfeld, Desiderio, Lebowitz & Silverman 12 East 49th Street
New York, N.Y. 10017-1062

RE: Classification of articles of knit footwear

Dear Mr. Stang:

This is in reference to your letter dated May 2, 1989, requesting the tariff classification of knit footwear under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). Samples were submitted.

FACTS:

The merchandise at issue is articles of knit footwear with a decorative application of a rubberized plastic compound on one side. The article consists of a sock composed of man-made fiber that has two layers of a rubberized plastic compound that is applied to the bottom of the sock in the shape of a foot and covers most of the sole area. The rubber compound is thick and acts as a sole.

ISSUE:

Whether the merchandise at issue is classifiable as footwear.

LAW AND ANALYSIS:

Chapter 64, HTSUSA, is the chapter in which footwear is classified. Note 1(a) to chapter 64, HTSUSA, states that this chapter does not cover footwear without applied soles, of textile material (chapter 61 or 62).

The rubber of the footwear at issue can be considered to be an applied sole. It covers the area that will be in contact with the ground and it is thick enough that it will protect the textile area and keep it dry. It will also provide tread and traction for the wearer.

HRL 084131 dated June 13, 1989, dealt with a similar type of footwear. The footwear in this ruling was not considered to have an applied sole. The rubber coating was applied in a pattern with separate pieces that did not cover very much of the bottom of the knit material. The rubberized plastic coating on the merchandise at issue is more extensive than that in HRL 084131.

Subheading 6404.19, HTSUSA, provides for footwear with outer soles of rubber, and uppers of textile materials, other, 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 having a foxing or foxing-like band wholly or almost wholly of rubber or plastics applied or molded at the sole and overlapping the upper. Further tariff breakout is determined by whether or not the rubberized plastic applied to the sole makes up more than 10 percent of the weight.

Note 3 to chapter 64, HTSUSA, states for the purposes of this chapter, the expression "rubber or plastics" includes any textile material visibly coated (or covered) externally with one or both of those materials. Under this note the textile material to which the rubber is applied must also be counted as rubber for purposes of weighing and measuring. The weight of the rubber/plastic includes the weight of the textile area to which it is applied. This would provide a weight of over 10 percent of rubber.

The inquirer states that Note 3 to Chapter 64, HTSUSA, does not apply to provisions at the 7 and 8 digit levels because the chapter notes were drafted before the 7 and 8 digit levels were drafted. This is not true because the provisions at the 7 and 8 digit level were drafted to comply with the chapter notes and other provisions in the chapter. The inquirer also states that the application of this chapter note would produce absurd results in other chapters. The language of the note reads "for the purposes of this chapter"; therefore, this note is only applicable to chapter 64, HTSUSA. It is irrelevant that the textile and plastic can easily be separated for weight
calculations, because under GRI 1, all applicable chapter notes must be administered in determining the classification of goods.

HOLDING:

The merchandise at issue is classifiable under subheading 6404.19.3560, HTSUSA, as footwear with outer soles of rubber, and uppers of textile materials, other, footwear of the slip-on type, that is held to the foot without the use of laces or buckles or other fasteners, except footwear having a foxing or foxing-like band wholly or almost wholly of rubber or plastics applied or molded at the sole and overlapping the upper, other, other, for women. The rate of duty is 37.5 percent ad valorem.

Sincerely,

John Durant, Director

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