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NY B88663




September 9, 1997

CLA-2-64:RR:NC:TP:347 B88663

CATEGORY: CLASSIFICATION

TARIFF NO.: 6403.99.60, 6403.99.90

Mr. Erik D. Smithweiss
Grunfeld, Desiderio, Lebowitz & Silverman LLP 245 Park Avenue, 33rd Floor
New York, N.Y. 10167

RE: The tariff classification of an athletic shoe from China

Dear Mr. Smithweiss:

In your letter dated August 14, 1997, on behalf of your client, E.S. Originals, Inc., you requested a tariff classification ruling.

You have submitted a sample of what you state is a men and boy's athletic shoe, style MT 694-2. You state that the upper is made of leather, plastic, and textile materials, with an outer sole of rubber/plastic. You have also submitted a lab report which states that the external surface area of the upper (ESAU) is 52.46% leather, 37.05% plastic and 10.49% textile, including accessories and reinforcements such as those mentioned in Note 4(a) to chapter 64, Harmonized Tariff Schedule of the United States (HTS). For the purposes of this ruling, we will assume these measurements to be correct, however, they may be subject to verification at the port of entry at the time of importation.

The applicable subheading for the athletic shoe, up to and including American size 8, will be 6403.99.90, Harmonized Tariff Schedule of the United States (HTS), which provides for footwear with leather uppers and plastic and/or rubber soles, not covering the ankle, for other persons, valued over $2.50 per pair. The rate of duty will be 10% ad valorem. For sizes 8.5 and above, the applicable subheading will be 6403.99.60, HTS, which provides for footwear with leather uppers and plastic and/or rubber soles, not covering the ankle, for men, youths and boys. The rate of duty will be 8.5% ad valorem.

We also note that the submitted samples are not marked with the country of origin. Therefore, if imported as is, the sample submitted will not meet the country of origin marking requirement of 19 U.S.C. 1304. Accordingly, the sneaker would be considered not legally marked under the provisions of 19 C.F.R. 134.11 which states, "every article of foreign origin (or its container) imported into the U.S. shall be marked in a conspicuous place as legibly, indelibly, and permanently as the nature of the article (or container) will permit."

Section 134.46 of the Customs Regulations (19 CFR 134.46) provides that in any case where the words "U.S.," "American," or any variation of such words or letters, or the name of any city or locality in the U.S., or the name of any foreign country or locality other than the country or locality in which the article was manufactured or produced, appear on any imported article or its container, there shall appear, legibly and permanently, in close proximity to such words, letters or name, and at least in a comparable size, the name of the country of origin preceded by "Made in," "Product of," or other words of similar meaning.

In order to satisfy the close proximity requirement, the country of origin marking must generally appear on the same side(s) or surface(s) in which the name or locality other than the actual country of origin appears.

There is no indication on the sample or in your letter that "USA," displayed above an Olympic symbol located on the heel of the submitted sample, is a registered trade name. If it is, then section 134.47 of the Customs Regulations (19 CFR 134.47) applies which provides that [w]hen as part of a trademark or trade name or as part of a souvenir marking, the name of a location in the United States or "United States" or "America" appear, the article shall be legibly, conspicuously, and permanently marked to indicate the name of the country of origin of the article preceded by "Made in," "Product of," or other similar words, in close proximity or in some other conspicuous location.

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

A copy of the ruling or the control number indicated above should be provided with the entry documents filed at the time this merchandise is imported. If you have any questions regarding the ruling, contact National Import Specialist Richard Foley at 212-466-5890.

Sincerely,

Paul K. Schwartz
Chief, Textiles & Apparel Branch

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