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HQ 086070


February 26, 1990

CLA-2 CO:R:C:G 086070 WAW

CATEGORY: CLASSIFICATION

TARIFF NO.: 6406.99.3030

Mr. Edward H. Epp
DeNewol Soles and Laces
Box 47
St. Francois Xavier
Manitoba Canada
ROH IJO

RE: Plastic sandal bottoms

Dear Mr. Epp:

This letter is in response to your request, dated October 30, 1989, for a tariff classification of plastic sandal bottoms under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) manufactured in Canada. Two samples were submitted along with your request.

FACTS:

The sample that was submitted consists of a single pieces of molded plastic with a patterned sole, a raised patterned heel and a top side which has a raised plastic anchor between the big toe and the second toe. In addition, there is a hole in the plastic anchor and through the sole at either side to allow for the attachment of laces, which make up the upper of the sandal. There are also molded plastic small projections in the arch area of the top side of the plastic sole which serve as an arch support for the foot.

ISSUE:

(1) Whether the merchandise at issue is classifiable as "footwear," or as "footwear parts."

(2) If the merchandise constitutes "footwear parts" whether it is classifiable under subheading 6406.20.0000, HTSUSA, or under subheading 6406.99.3030, HTSUSA.

LAW AND ANALYSIS:

The General Rules of Interpretation (GRI's) set forth the manner in which merchandise is to be classified under the HTSUSA. GRI 1 requires that classification be determined first according to the terms of the headings of the tariff and any relative section or chapter notes and, unless otherwise required, according to the remaining GRI's, taken in order.

It is our position that the sample merchandise does not constitute "footwear" under Headings 6401 to 6405 of the nomenclature. Since the inception of the Harmonized Tariff Schedule, Customs has not relied on the "essential character" clause of General Rule of Interpretation 2(a), with regard to footwear uppers without outer soles, in order to classify imported items as footwear under Headings 6401 to 6405, HTSUSA. But rather, Customs has consistently maintained that these items should be classified under Heading 6406, HTSUSA, which provides for parts of footwear.

Moreover, it is the opinion of the Customs Service that the drafters of the international nomenclature did not intend for the external surface test applicable to outer soles, which is set forth under Legal Note 4(b) to Chapter 64, to apply to those soles which were not part of the same shipment, even if there was no doubt concerning what that material would constitute. By the same token, it is Customs position that this policy requires that footwear bottoms (i.e., a part of footwear upon which the foot rests but which does not extend up the sides of the foot), which have no uppers, must also be classified under Heading 6406, HTSUSA, since without the uppers present it would be impossible to apply the external surface test to the footwear bottoms. Accordingly, since the sample merchandise will be imported without the accompanying uppers, it is properly classifiable under "parts of footwear" and not under "footwear."

Subheading 6406.20.0000, HTSUSA, provides for parts of footwear which includes outer soles and heels, of rubber or plastics. The Explanatory Notes to Chapter 64, which constitute the official interpretation of the tariff at the international level, define the outer sole as "that part of the footwear which, when in use, is in contact with the ground." In the instant case, the sample article not only has an "outer sole," but it also possesses characteristics commonly found in an inner sole. For instance, there is a toe anchor on the top side of the sole for the laces running between the toes as well as an arch support which are both traditionally found on the inner sole of a shoe. Thus, only the lower surface of the sample can properly be called an "outer sole" while the piece in its entirety is more appropriately classified by Customs as "a bottom."

It is Customs position that since the sample merchandise is more than simply an "outer sole," it is properly classifiable under subheading 6406.99.3030, HTSUSA, which provides for parts of footwear other than uppers and parts thereof; which are other than outer soles and heels of rubber or plastic; and which are footwear bottoms of rubber or plastic. Additionally, since the articles are being imported from Canada they are entitled to a special lower rate of duty under the United States-Canada Free- Trade Agreement, upon compliance with origin requirements of General Note 3(c)(vii), HTSUS.

HOLDING:

The sample merchandise is classifiable under subheading 6406.99.3030, HTSUSA. The applicable rate of duty is 4.2 percent ad valorem.

Sincerely,


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