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HQ 089010


October 17, 1991

CLA-2 CO:R:C:M 089010 NLP

CATEGORY: CLASSIFICATION

TARIFF NO.: 6404.20.40; 6404.20.60

District Director
United States Customs Service
Suite 765
One World Trade Center
Long Beach, CA 90831

RE: Protest No. 2704-90-002264; footwear; HRL 082614

Dear District Director:

The following is our response to the Protest and Request for Further Review No. 2704-90-002264, dated May 25, 1990, concerning the tariff classification of two styles of women's espadrilles under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA).

FACTS:

The footwear at issue is two styles of women's espadrilles. The first pair, style #C904100, is a women's slip-on shoe with a stripped canvas upper that is decorated with an embroidered nautical flag. The shoe has a wedge heel and a leather sole.

The second pair, style #C904101, is a women's slip-on shoe with a beige colored canvas upper that is decorated with an embroidered crest. The shoe has a wedge heel and a leather sole.

Upon importation the shoes were classified in subheading 6404.20.60, HTSUSA, which provides for footwear with outer soles of rubber, plastics, leather or composition leather and uppers of textile materials, footwear with outer soles of leather, other.

Counsel states that both styles are less than 10 percent by weight of rubber and plastics and not over 50 percent by weight of textile materials, rubber and plastics. As a result, the subject shoes should be classified in subheading 6404.20.40, HTSUSA, which provides for footwear with outer soles of rubber, plastics, leather or composition leather and uppers of textile materials, footwear with outer soles of leather, not over 50 percent by weight of rubber or plastics and not over 50 percent by weight of textile materials and rubber or plastics with at least 10 percent by weight being rubber or plastics, valued over $2.50/pair.

ISSUE:

Are styles #C904100 and #904101 classified in subheading 6404.20.60, HTSUSA, or in subheading 6404.20.40, HTSUSA.

LAW AND ANALYSIS:

Footwear with outer soles of rubber, plastics, leather or composition leather and uppers of textile material are classified in Heading 6404, HTSUSA. Footwear with outer soles of leather or composition leather are classified in subheading 6404.20, HTSUSA. The subject footwear is clearly classified in this subheading. The only question is whether the footwear is not over 50% by weight of rubber or plastics and not over 50% by weight of textile materials and rubber or plastics with at least 10% by weight being rubber or plastics to be classified in subheading 6404.20.20/6404.20.40, HTSUSA, depending on the value per pair, or in subheading 6404.20.60, HTSUSA, as other footwear.

Headquarters Ruling Letter (HRL) 082614, dated October 17, 1988 interpreted the language of subheading 6404.20.40, HTSUSA, and provided that this subheading is limited to footwear with fabric uppers and leather or composition leather soles which are under 10 percent by weight of rubber or plastics or not over 50 percent by weight of textile materials, rubber and plastics. Thus, footwear with fabric uppers and leather or composition leather soles does not have to be both under 10 percent by weight of rubber and plastics and under 50 percent by weight of textile materials, rubber and plastics to be classified in subheading 6404.20.40, HTSUSA.

The sample shoes were examined by the Chicago Customs Laboratory for a determination of the weights of the shoes' constituent components. Customs laboratory report no. 3-91- 21053-002, dated September 4, 1991, provided the following results:

STYLE #C904100

COMPONENTS % BY WEIGHT

Textile materials 44
Rubber/plastics material 12
Leather 16
Misc: wood, cardboard, etc... 28

STYLE #C904101

COMPONENTS % BY WEIGHT

Textile materials 38
Rubber/plastics material 10
Leather 20
Misc: wood, cardboard, etc.. 32

Style #C904100 is both over 10 percent by weight of rubber and plastics and over 50 percent by weight textile materials, rubber and plastics. Therefore, this style of shoe is not classified in subheading 6404.20.40, HTSUSA. Although Style #C904101 is not under 10 percent by weight rubber or plastics, it is under 50 percent by weight of textile materials, rubber and plastics. Therefore, it is classified in subheading 6404.20.40, HTSUSA.

HOLDING:

Style #C904100 is classified in subheading 6404.20.60, HTSUSA. Style #C904101 is classified in subheading 6404.20.40, HTSUSA.

The protest should be denied in part and granted in part as set forth in this ruling. A copy of this decision should be attached to the Customs Form 19 and mailed to the protestant as part of the notice on the protest.

Sincerely,

John Durant, Director
Commercial Rulings Division

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