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HQ 958645




May 15, 1996
CLA-2 RR:TC:TE 958645 jb

CATEGORY: CLASSIFICATION

TARIFF NO.: 6403.99.90

Roger J. Crain
Customs Science Services, Inc
3506 Frederick Place
Kensington, MD 20895-3405

RE: Revocation of a woman's sandal with plastic and leather upper; external surface area of the upper; analysis based on the greatest area exposed on the shoes surface

Dear Mr. Crain:

This is in regard to your letter, dated November 1, 1995, on behalf of your client, BBC International Ltd., requesting reconsideration of DD 814317, regarding the classification of a woman's sandal. A sample was received by this office for examination.

Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. 1625(c)(1)) as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act (Pub. L. 103-182, 107 Stat. 2057), notice of the proposed revocation of NY 840648 was published on April 10, 1996, in the CUSTOMS BULLETIN, Volume 30, Number 15.

FACTS:

The subject woman's sandal, referenced style "Lofton", consists of a rubber/plastic sole and an upper made of leather and plastic. The upper consists of a two part leather ankle strap assembly with a metal buckle and a leather vamp attached at the toe covering the top of the wearer's foot, which is attached to the ankle strap assembly. Three clear plastic straps are attached to the sides of the sole and are threaded through angled slots in the leather vamp.

In District Decision (DD) 814317, dated September 25, 1995, Customs determined that the plastic, not the leather, constituted the greatest external surface of the sandal. The sandal was classified in subheading 6402.99.30, HTSUSA, which provides for, other footwear with outer soles and uppers of rubber or plastics: other footwear: other: 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, the foregoing except footwear of subheading 6402.99.20 and except footwear having a foxing or a foxing-like band wholly or almost wholly of rubber or plastics applied or molded at the sole and overlapping the upper.

ISSUE:

Whether the plastic or the leather constitutes the greatest external surface area of the upper?

LAW AND ANALYSIS:

Classification of merchandise under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) is in accordance with the General Rules of Interpretation (GRI). GRI 1 requires that classification be determined according to the terms of the headings and any relative section or chapter notes. Where goods cannot be classified solely on the basis of GRI 1, the remaining GRI will be applied, in the order of their appearance.

Heading 6403, HTSUSA, provides for, footwear with outer soles of rubber, plastics, leather or composition leather and uppers of leather. General Note (D) to chapter 64, HTSUSA, states, in relevant part:

For the purposes of the classification of footwear in this Chapter, the constituent material of the uppers must also be taken into account. The upper is the part of the shoe or boot above the sole...

If 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.

The greatest external surface area of the upper is the outside surface of what actually covers the foot. In the case of an interwoven upper of various materials, as in the subject merchandise, only the area that is exposed on the shoe's surface should be considered in determining the greatest external surface area. Based upon a visual examination of the submitted sandal, it is the opinion of this office that the greatest external surface area of the upper is formed by the leather. As such, classification in subheading 6402.99.30, HTSUSA, is improper. Accordingly, proper classification for the subject merchandise is in heading 6403, HTSUSA.

HOLDING:

The subject woman's sandal, referenced style "Lofton", is classified in subheading 6403.99.90, HTSUSA, which provides for footwear with outer soles of rubber, plastics, leather or composition leather and uppers of leather; other footwear; other: other: other: for other persons: valued over $2.50/pair. The applicable rate of duty is 10 percent ad valorem and there is no textile restraint category. DD 814317 is hereby revoked.

In accordance with section 625(c)(1), this ruling will become effective 60 days after its publication in the CUSTOMS BULLETIN. Publication of rulings or decisions pursuant to section 625(c)(1) does not constitute a change of practice or position in accordance with section 177.10(c)(1), Customs Regulations (19 CFR 177.10(c)(1)).

Sincerely,


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