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NY 894545




February 23, 1994

CLA-2-64:S:N:N8:346-T 894545

CATEGORY: CLASSIFICATION

TARIFF NO.: 6404.19.70

Mr. King Van Nostrand
Elco Freight International Inc.
Route 1 & 9 South and International Way
Newark, N.J. 07114

RE: The tariff classification of "sailboarding" footwear from Germany.

Dear Mr. Van Nostrand:

In your letter dated February 3, 1994, on behalf of BIC Corp., you requested a tariff classification ruling.

The submitted samples are two half pairs of "sailboarding" footwear, which have partially textile faced neoprene rubber bootie-type uppers and high sidewalled rubber cupsole bottoms.

Style name "Slipper", your article # 013100, has a below-the- ankle height neoprene rubber upper that has a predominately textile faced external surface. It also has a 1 inch wide plastic "Velcro" cinch strap across the instep and a cemented-on rubber cupsole bottom, which overlaps the upper by about 1/2 inch at the sides, 3/4 inch at the toe and by more than 2 inches around the heel.

With your ruling request, you have provided "material composition" figures from the maker, we assume, which indicate that this "Slipper" is "80% nylon II and 20% finemesh/nylon". It is not clear to us what these "composition" figures represent, but from our own visual examination of this sample, we were able to determine that it does have an upper with an external surface area that is mostly comprised of a textile mesh material (maybe as much as 80% textile, i.e., your 80% nylon II "material composition" figure.)

You also provide an "Estimate Value $5.00 pair" for each of the submitted samples.

The applicable subheading for the "Slipper", article #013100 will be 6404.19.70, Harmonized Tariff Schedule of the United States (HTS), which provides for footwear, in which the upper's external
surface is predominately of textile materials (noting that an accessory or reinforcement stitched on top or another material is not part of the upper's external surface but the material hidden underneath is); in which the external surface of the outer sole is predominately rubber and/or plastics; which is other than athletic footwear; which is not designed to be a protection against water, oil, or cold or inclement weather; which has a foxing-like band almost wholly of rubber or plastics; and which is valued, we presume, over $3.00, but not over $6.50 per pair. The rate of duty will be 90 cents per pair plus 37.5 percent ad valorem.

Your inquiry does not provide enough information for us to give a classification ruling on the other sample, style name "Basic", your article #013105. Your request for a classification ruling should include a laboratory measurement detailing the exact percentages for the component materials comprising the external surface area of the upper. Please note, this is the third time we are returning this sample to you for a surface area measurement. The information you provided to us states that the material composition of this item is 60 percent Nylon II and 40 percent fine mesh Nylon. In other words, 100 percent textile. However, our visual examination negates this claim because a large portion of the vamp/shaft is clearly a rubber/plastic material.

The governing factors in determining the correct classification of footwear are, the materials of the upper and the materials of the sole. HTS Chapter 64 Note 4.(a) states, "The material of the upper shall be taken to be the constituent material having the greatest external surface area ..." Since you have not provided us the information that we need to determine which material constitutes the greatest surface area of the upper, we cannot classify this item. Although you have also not provided us with any information on the constituent materials of the sole, we can determine in this case by visual examination, that the material is rubber/plastic.

We suggest that you contact one of the independent laboratories that specializes in doing these footwear measurements. We encourage you to resubmit the sample with the laboratory report at your convenience. If you have any questions regarding this issue, contact NIS Eric Francke (212-466-5890).

We are returning both your samples.

This ruling is being issued under the provisions of Section 177 of the Customs Regulations (19 C.F.R. 177).

A copy of this ruling letter should be attached to the entry documents filed at the time this merchandise is imported. If the documents have been filed without a copy, this ruling should be brought to the attention of the Customs officer handling the transaction.

Sincerely,


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