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HQ 954928


September 23, 1993

CLA-2 CO:R:C:M 954928 DFC

CATEGORY: CLASSIFICATION

TARIFF NO.: 6405.90.90

Sherry L. Singer, Esq.
Singer & Singh
469 Seventh Avenue, Suite 1300
New York, New York 10018

RE: Footwear; Pump, ladies'; Upper, external surface area; Cork

Dear Ms. Singer:

In a letter dated July 28, 1993, to the Regional Commissioner of Customs, New York, on behalf of J.P. Original Corp., you inquired as to the tariff classification under the Harmonized Tariff Schedule of the United States (HTSUS), of a woman's high heeled pump shoe, style 96954, manufactured in China. Your letter, together with the sample, was forwarded to this office for a response.

FACTS:

The sample shoe has a rubber/plastic sole. Its upper consists of bits of cork stuck to woven fabric by use of plastic resins. A small percentage of the cork bits are covered by "sparkles." However, the presence of the "sparkles" on the upper does not affect the classification of the shoe.

ISSUE:

What material constitutes the external surface area of the upper?

LAW AND ANALYSIS:

GRI 1 provides that "classification shall be determined according to the terms of the headings and any relative section or chapter notes, and, provided such headings or notes do not otherwise require, according to [the remaining GRI's taken in order]." In other words, classification is governed first by the terms of the headings of the tariff and any relative section or chapter notes.

Note 4(a) to chapter 64, HTSUS, reads as follows:

4. Subject to note 3 to this chapter:

(a) 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.

The Harmonized Commodity Description and Coding System Explanatory Notes (EN) to the HTSUS, although not dispositive should be looked to for the proper interpretation of the HTSUS. See 54 FR 35128 (August 23, 1989). EN (E) to Chapter 64, HTSUS, states that "[i]t should be noted that 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, which means that the coating or covering can be seen with the naked eye with no account being taken of any resulting change of colour."

EN (F) to Chapter 64, HTSUS, states that "[s]ubject to the provision of (E) above, for the purposes of this Chapter the expression 'textile materials' covers the fibers, yarns, fabrics, felts, nonwovens, twine, cordage, ropes, cables, etc., of Chapters 50 to 60."

It has been noted that if sheets of this material were imported, they would be classified in accordance with the legal notes to Chapter 59, HTSUS, as "impregnated, coated or covered or laminated textile fabrics," rather than as "cork" or "agglomerated cork." in Chapter 45, HTSUS. Therefore, following EN (F) to Chapter 64, supra, it is suggested that the upper of this pump is of "textile material.

We do not agree. It is our observation that the bits of cork are what one sees and touches and logically should be considered as "external surface area" of the upper rather than the textile material hidden underneath. Clearly, cork constitutes the greatest external surface area of the upper. See Ugg International, Inc. v. United States, Slip Op. 93-16 (Ct. Int'l Trade, decided February 4, 1993).

The shoe is classifiable under subheading 6405.90.90, HTSUS, which provides for other footwear, other, other.

HOLDING:

Cork constitutes the greatest external surface area of the pump's upper.

Footwear represented by style 96954 is dutiable at the rate of 12.5% ad valorem under subheading 6405.90.90, HTSUS.

Sincerely,

John Durant, Director
Commercial Rulings Division

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