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HQ 089962

October 23, 1991

CLA-2 CO:R:C:M 089962 DWS

CATEGORY: CLASSIFICATION

TARIFF NO.: 6404.19.35; 6402.99.15

District Director of Customs
300 South Ferry Street, Room 2017
Terminal Island
San Pedro, CA 90731

RE: Footwear, Boys' Sandals; External Surface Area - Upper; Accessories or Reinforcements; Protest No. 2704-90-003854

Dear Sir:

This is our decision on Application for Further Review of Protest No. 2704-90-003854, dated September 17, 1990, concerning your action in classifying and assessing duty on boys' sandals under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA).

FACTS:

There are two styles of boys' sandals involved in this protest and they are both very much alike. The "Dick Tracy" sandal, style number L5-2240, has a multi-layered EVA sole. The colors of the sole are black and yellow. The sandal's upper is made of black casting PVC with matching yellow nylon lining. The nylon lining extends beyond the edges of the PVC and clearly provides the substance of the upper even though partially covered by the PVC. Attached to the upper is a black, elasticized, vinyl heel strap. Displayed on the upper is the "Dick Tracy" emblem. The "Tonka" sandal, style number L5-1998, also has a multi- layered EVA sole. The colors of the sole are black, blue, and white. The sandal's upper is made of blue casting PVC with matching blue nylon lining. Again, the nylon lining extends beyond the edges of the PVC and clearly provides the substance of the upper even though partially covered by the PVC. Attached to the upper is a blue, elasticized, vinyl heel strap. Displayed on the upper is a drawing of a "HyperDriver".

ISSUE:

What is the proper classification of the subject boys' sandals under the HTSUSA?

LAW AND ANALYSIS:

Classification of merchandise under the HTSUSA is in accordance with the General Rules of Interpretation (GRI's), taken in order. GRI 1 provides that classification is determined according to the terms of the headings and any relative chapter or section notes.

The merchandise was entered under subheading 6402.99.15, HTSUSA, which provides for:

[o]ther footwear with outer soles and uppers of rubber or plastics: [o]ther footwear: [o]ther: [h]aving 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: [o]ther.

However, the merchandise was liquidated under subheading 6404.19.35, HTSUSA, which provides for:

[f]ootwear with outer soles of rubber or plastics: [o]ther: [f]ootwear 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 . . .: [o]ther.

In understanding the HTSUSA, the Harmonized Commodity Description and Coding System Explanatory Notes may be utilized. The Explanatory Notes, although not dispositive, are to be used to determine the proper interpretation of the HTSUSA. 54 Fed. Reg. 35127, 35128 (August 23, 1989). Explanatory Note D to Chapter 64 (p.874), HTSUSA, states that:

[i]f the upper consists of two or more materials, classification is determined by the constituent material which has the greatest external surface area, no account being taken of accessories or reinforcements such as ankle patches, protective or ornamental strips or edging, other ornamentation (e.g., tassels, pompons or braid), buckles, tabs, eyelet stays, laces or slide fasteners. The constituent material of any lining has no effect on classification.

Concerning both the "Dick Tracy" and the "Tonka" sandals, we consider the main component of the external surface area of the upper to be the textile lining. It is our position that the PVC casting and emblem is "an accessory or reinforcement" for tariff purposes. Therefore, it is not to be considered in the determination of the external surface area of the upper. Because the PVC casting and emblem may not be considered, the only material that may be regarded in the determination of the
external surface area of the upper is the textile lining.

HOLDING:

Both the subject "Dick Tracy" and "Tonka" boys' sandal are classifiable under subheading 6404.19.35, HTSUSA, which provides for:

[f]ootwear with outer soles of rubber or plastics: [o]ther: [f]ootwear 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 . . .: [o]ther.

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

Sincerely,

John Durant, Director
Commercial Rulings Division

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