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NY D83194




November 4, 1998

CLA-2-64:RR:NC:TA:347 D83194

CATEGORY: CLASSIFICATION

TARIFF NO. 6402.99.90

Mr. John B. Pellegrini
Ross & Hardies
65 East 55th Street
New York, NY 10022-3219

RE: The tariff classification of footwear made in China.

Dear Mr. Pellegrini:

In your letter dated October 6, 1998 you requested a classification ruling on behalf of your client, Elan-Polo Inc. You have submitted a shoe upper which you state is composed of rubber/plastic with textile accessories. The accessories consist of two textile stripes on each side of the vamp and four textile lace loops. In addition, there are two lace loops on the tongue. The specific issue addressed here is whether either of the lace loops on the tongue are considered in determining the material of the upper when all accessories and reinforcements are included. We assume that the completed shoe in it's imported condition will not possess a foxing or foxing-like band and that it will not be designed to be worn over, or in lieu of, other footwear as a protection against water, oil, grease or chemicals or cold or inclement weather.

As you state, Customs has ruled on numerous occasions that shoe tongues, which are on a lower plane than the rest of the shoe's upper are not to be included in the external surface area of the upper (ESAU) determination. This approach has been applied to shoe tongues which are clearly visible as long as they are on a lower plane than the rest of the upper. In addition to not being considered as ESAU, they are not considered accessory or reinforcement as those concepts are interpreted by this office. For ESAU determinations, shoe tongues are generally disregarded in total when they are on a lower plane than the upper.

We do not agree with your opinion that the two tongue lace loops are, like the tongue itself, below the plane of the upper. When laced, both lace loops appear on the same plane as the rest of the upper. In this regard they are not ignored and are considered accessory and reinforcement. Although you have not provided a percentage measurement for the component materials of the upper, a visual examination of this upper indicates an upper which is not over 90 percent rubber or plastics including accessories and reinforcements.

The applicable subheading for this item if valued over $12/pair will be 6402.99.90, Harmonized Tariff Schedule of the United States, (HTS) which provides for footwear with outer soles and uppers of rubber or plastics, not covering the ankle, other, other, valued over $12/pair. The rate of duty will be 20 percent ad valorem.

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

A copy of this ruling letter 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 this ruling, contact National Import Specialist, Richard Foley at (212) 466-5890.

Sincerely,

Robert Swierupski
Director,

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