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HQ 089898


April 13, 1992

CLA-2 CO:R:C:M 089898

CATEGORY: CLASSIFICATION

TARIFF NO.: 6402.99.30

Mr. James P. Sullivan
Sullivan & Lynch, P.C.
156 State Street
Boston, MA 02109

RE: Woman's fashion shoe; uppers whose external surface are not over 90 percent plastic; subheading 6402.99.15; NYRL 863678; HRL 073043; HRL 087788; HRL 084574

Dear Mr. Sullivan:

This ruling is in response to your letters dated July 1, 1991, and December 3, 1991, on behalf of your client, Bennett Importing Company, requesting a reconsideration of New York Ruling Letter (NYRL) 863678, dated June 19, 1991, concerning the tariff classification of a woman's fashion shoe. Samples of the subject footwear were submitted for our examination.

FACTS:

The product at issue is a woman's below the ankle height slip-on shoe. The shoe has a functionally stitched on plastic upper and a sole composed of a cemented-on molded rubber/plastic. The front half of the plastic upper has numerous rectangular, triangular and circular shaped 1/4 inch cutouts. Under these cutouts is a visible nylon textile mesh material.

NYRL 863678, dated June 19, 1991, held that the nylon textile mesh material in the subject shoe accounted for over 10 percent of the upper's external surface area and, therefore, the shoe was considered to have an upper of less than 90 percent plastic. The shoe was then classified in subheading 6402.99.30, Harmonized Tariff Schedule of the United States (HTSUS), which provides for other footwear with outer soles and uppers of rubber or plastics, other footwear, other, footwear with open toes or open heels; footwear of the slip-on type, that is held to the foot without the use of laces or buckles or other fasteners, etc....

It is the position of the importer that the exterior surface area of the shoe's upper is over 90 percent plastic and, therefore, the shoe is properly 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. In support of the importer's position, you make the following arguments:

(1) The mesh material is a lining and the Explanatory Notes to Chapter 64 preclude linings from being considered in determining the external surface area measurements of an upper.

(2) The mesh lining is not part of the surface area of the upper because it is on a plane lower than a portion of the upper, it is not tactile and it is only partially visible.

ISSUE:

Whether the nylon mesh material is excluded when determining the constituent material having the greatest external surface area of the instant shoe's upper.

LAW AND ANALYSIS:

The General Rules of Interpretation (GRI's) set forth the manner in which merchandise is to be classified under the HTSUS. 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.

Chapter 64, HTSUS, provides for the classification of footwear. 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. Therefore, in order to classify this footwear it must be determined what material makes up the external surface area of the shoe's upper.

HRL 073043, dated March 28, 1984, dealt with the classification of 2 styles of women's shoes. The first style was a women's plastic high-heel shoe with an open toe, an open back and an ankle strap. The shoe had diamond-shaped stripping
cut-outs (interstices) on the vamp. Underlying the stripping and vamp interstices was a nylon mesh material. The second style was a women's high-heel, closed toe, closed back and slip-on plastic fashion pump with an open grid-like plastic stripping upper. Underlying the open grid interstices was a nylon mesh material. It was counsel's position that the shoes were classified in item 700.56, Tariff Schedules of the United States (TSUS), which is essentially the predecessor provision to subheading 6402.99.15, HTSUS. The issue presented in HRL 073043 is identical to the issue presented in this case.

With respect to the mesh materials, HRL 073043 stated the following:

..., it is our observation that the exposed portions are part of the exterior surface area of the uppers. A lining presupposes a material or something which is lined. Here the interstices in both samples display so-called linings which actually line nothing. At the interstices the nylon mesh constitutes both the upper and the exterior surface area of the upper.

Therefore, HRL 073043 did not consider the mesh material to be a liner and it was not excluded when the external surface area of the upper was determined.

Counsel in HRL 073043 also cited cases to support their argument that the mesh lining was not a part of the exterior surface area of the upper because it was on a plane lower than a portion of the upper. These rulings, and HRL 084574, dated November 30, 1989, and HRL 087788, dated February 26, 1991, held that the tongues in the respective boots were not part of the exterior surface area of the uppers as the tongues were on a plane lower than a portion of the uppers and were partially covered or wholly covered by laces and eyelet facings or stays. In HRL 073043, the textile mesh material, while on a lower plane than a portion of the upper, was not wholly or partially covered but was completely visible and tactile. Therefore, the textile mesh material found within the interstices was not a lining because it lined nothing. At the interstices the textile mesh material constituted both the upper and the exterior surface area of the uppers. Consequently, the shoes were classified in item 700.59, TSUS, which is essentially the predecessor provision to subheading 6402.99.30, HTSUS.

We agree with the conclusion reached in HRL 073043 that the mesh material is not considered a lining material. Moreover, the rationale that was applied in HRL 073043, in relation to the argument that the mesh material was on a plane lower than the
upper and was excluded in determining the external surface area of the upper, is equally applicable here. First, the mesh material is a different article than a tongue. Second, the mesh material here is not wholly or partially covered but is completely visible and tactile.

Congress has indicated that earlier tariff rulings must not be disregarded in applying the HTSUSA. The conference report to the 1988 Omnibus Trade Bill, states that "on a case-by-case basis prior decisions should be considered instructive in interpreting the HTS[USA], particularly where the nomenclature previously interpreted in those decisions remains unchanged and no dissimilar interpretation is required by the text of the HTS[USA]." H. Rep. No. 100-576, 100th Cong., 2D Sess. 548, 550 (1988). Since the subject nomenclature in the TSUS and HTSUS are essentially the same and the articles at issue in HRL 073043 are essentially the same, we find that HRL 073043 is a valid precedent and supports the conclusion that the mesh material is not a lining and should not be treated like a tongue. The mesh material is included as part of the external surface area of the shoe's upper and the shoe is classified in subheading 6402.99.30, HTSUS.

HOLDING:

The shoe is classified in subheading 6402.99.30, HTSUS, which provides for other footwear with outer soles and uppers of rubber or plastics, other footwear, other, footwear with open toes or open heels; footwear of the slip-on type, that is held to the foot without the use of laces or buckles or other fasteners, etc.... The rate of duty is 37.5 percent ad valorem.

NYRL 863678 is affirmed.

Sincerely,

John Durant, Director
Commercial Rulings Division

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