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HQ 952305



August 5, 1992

CLA-2 CO:R:C:M 952305 DWS

CATEGORY: CLASSIFICATION

TARIFF NO.: 6404.19.35

Ms. Tinka G. Andrade
International Import Manager
Meldisco Corporation
933 Macarthur Boulevard
Mahwah, NJ 07430

RE: Footwear; Men's Sandals; External Surface Area of the Upper; Accessories or Reinforcements; HQ 089962; Explanatory Note D to Chapter 64

Dear Ms. Andrade:

This is in response to your letter to the Area Director of Customs, New York Seaport, of June 18, 1992, concerning the classification of men's sandals under the Harmonized Tariff Schedule of the United States (HTSUS). Your request has been referred to Headquarters for a reply.

FACTS:

The merchandise consists of men's sandals imported from China. The sandal is both open toe and open back. The sandal's sole has a multi-layered, black EVA sole. The upper is made of brown PVC NUBUCK with green nylon lining. The nylon lining clearly provides the substance of the upper, even though partially covered by the PVC.

ISSUE:

What is the proper classification of the subject men's sandal under the HTSUS?

LAW AND ANALYSIS:

Classification of merchandise under the HTSUS 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 section or chapter notes.

In understanding the HTSUS, 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.

In HQ 089962, dated October 23, 1991, we ruled upon two pairs of sandals with EVA soles and uppers made of black casting PVC with matching yellow nylon lining. In that ruling, we stated that "[c]oncerning 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."

As with the sandals in HQ 089962, it is our position that the PVC NUBUCK material is "an accessory or reinforcement" for tariff purposes. Therefore, the only material that may be regarded in the determination of the external surface area of the upper is the nylon lining.

Consequently, it is our position that the sandal is classifiable under subheading 6404.19.35, HTSUS, which provides for:

[f]ootwear with outer soles of rubber, plastics, leather or composition leather and uppers of textile materials: [f]ootwear with outer soles of rubber or plastics: [o]ther: [f]ootwear with open toes or open heels . . . : [o]ther.

HOLDING:

The subject men's sandal is classifiable under subheading 6404.19.35, HTSUS. The general, column one rate of duty is 37.5 percent ad valorem.

Sincerely,

John Durant, Director

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