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HQ 958569




February 21, 1996

CLA-2 RR:TC:TE 958569 GGD

CATEGORY: CLASSIFICATION

TARIFF NO.: 6402.99.18

Erik D. Smithweiss, Esquire
Grunfeld, Desiderio, Lebowitz & Silverman, LLP 245 Park Avenue
New York, New York 10167-0002

RE: Men's Sports Sandals; Note 4 to Chapter 64; External Surface Area of Upper

Dear Mr. Smithweiss:

This letter is in response to your request of August 21, 1995, on behalf of your client, American Sporting Goods, concerning the classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) of men's sports sandals to be imported from the Far East. A sample was submitted with your request.

FACTS:

The sample, identified by style no. 6301, is a men's sports sandal with a rubber or plastic outer sole and an upper consisting of plastic and textile. The front portion of the sandal's upper, which covers the wearer's instep, is composed entirely of plastic material. The rear part of the upper consists of two side posts and an ankle strap with a hook and loop closure. It is composed of textile material which is lasted into the footbed and substantially covered by plastic material (which also is lasted into the footbed). A small portion of textile material extends past the plastic layer and is visible on the sandal's surface.

The textile material of the upper consists of a woven (or knit) fabric with the finished side facing the wearer's foot. This finished side is analogous to a lining. The ends are turned -2-
outward and sewn to another piece of textile material. A foam material between the two textile layers serves as cushioning. The outside piece of textile material is not visible on the surface of the sandal. Only through removal of the plastic outer layer is it evident that the sandal does not possess a finished upper of textile material. The visible textile is part of the sturdy material which, although analogous to a lining, must be considered for purposes of classification. A visual examination of the sandal, however, indicates an upper of which over 90 percent of the external area (including accessories and reinforcements) is rubber or plastic.

ISSUE:

Whether the sandals are classified in heading 6404, HTSUS, as footwear with outer soles of rubber or plastics and uppers of textile materials; or in heading 6402, HTSUS, as other footwear with outer soles and uppers of rubber or plastics.

LAW AND ANALYSIS:

Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRI). The systematic detail of the harmonized system is such that virtually all goods are classified by application of GRI 1, that is, according to the terms of the headings of the tariff schedule and any relative Section or Chapter Notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRI may then be applied. The Explanatory Notes (EN) to the Harmonized Commodity Description and Coding System, which represent the official interpretation of the tariff at the international level, facilitate classification under the HTSUS by offering guidance in understanding the scope of the headings and GRI.

Among other merchandise, chapter 64, HTSUS, covers footwear, gaiters and the like, and parts of such articles. Concerning uppers which consist of two or more materials, note 4(a) to chapter 64 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. -3-

The EN to chapter 64, HTSUS, indicate that the constituent material of the outer sole and of the upper, determines classification in headings 6401 to 6405. The EN also provide additional examples of features deemed accessories to, or reinforcements for, the uppers, such as protective or ornamental strips, other ornamentation (e.g., tassels, pompons or braid), laces, and slide fasteners. The EN to chapter 64 further suggest that the constituent material of any lining has no effect on classification.

Heading 6402, HTSUS, applies to "Other footwear [than the waterproof footwear of heading 6401] with outer soles and uppers of rubber or plastics." The EN to heading 6402 indicate that footwear remains in the heading even if it is made partly of one and partly of another of the specified materials (e.g., the soles may be of rubber and the uppers of woven fabric visibly coated or covered externally with plastics).

Despite its lining-like quality, the textile portion of the upper is fairly strong and cannot be completely disregarded for classification purposes. The visible textile material is included in the measurement of the external surface area. On the other hand, since the rubber or plastic material of the upper is not similar to the examples of accessories or reinforcements cited in note 4(a) and the EN to chapter 64, HTSUS, this material - which comprises over 90 percent of the sandal's external surface area - is taken fully into account. We thus find that the rubber or plastic material comprises the substance of the sandal's upper. The goods are properly classified in subheading 6402.99.18, HTSUSA.

HOLDING:

The men's sports sandals, identified by style no. 6301, are properly classified in subheading 6402.99.18, HTSUSA, the provision 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: Other." The applicable rate of duty is 6 percent ad valorem.

Sincerely,

John Durant, Director
Tariff Classification
Appeals Division

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