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NY H86197




January 11, 2002

CLA-2-64:RR:NC:347:H86197

CATEGORY: CLASSIFICATION

TARIFF NO.: 6404.11.80

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

RE: The tariff classification of footwear from China

Dear Mr. Pellegrini:

In your letter dated December 12, 2001, you requested a tariff classification ruling for a sample of footwear identified as Pattern No. 34223 on behalf of Elan-Polo, Inc.

You describe the merchandise which is the subject of this ruling request as a woman’s five-eyelet shoe. The shoe is an athletic shoe with an upper of textile material and an outer sole of rubber/plastics. The shoe does not cover the ankle and has a foxing tape encircling the shoe. The upper is composed of a three-ply material consisting of a thin leather layer sandwiched between a textile inner lining and a textile outer layer. The leather layer is lasted under and cemented to the outer sole. The textile outer layer is the only component material visible on the surface of the shoe. While it is not lasted under nor cemented to the outer sole, it is however secured beneath the foxing tape. You contend that the shoe has an upper of leather and the textile material should be viewed as accessory or reinforcement per Note 4(a), Chapter 64, Harmonized tariff Schedule of the United states (HTS). This contention is based upon your interpretation of Hi-Tech Sports USA v. United States; Slip-Op 96-139 dated August 16, 1996. In that decision, leather overlays atop a textile upper were considered external surface area of the upper by the court because they were lasted under and cemented to the outer sole thereby contributing structural strength to the shoe.

In general, the external surface area of the upper (ESAU) for footwear classification is taken to be the constituent material having the greatest external surface area, no account being taken of accessories or reinforcements such as ankle patches, edging, ornamentation, buckles, tabs, eyelet stays or similar attachments. In addition, factors such as visibility, material plausibility, completeness and structure are evaluated for ESAU determinations when footwear uppers consist of multiple materials. It is the opinion of this office that the external textile material imparts the ESAU for Pattern No. 34223 in terms of visibility, plausibility, completeness and structure. Textile is the only material visible on the surface of the upper. The textile is also not like the examples of accessories and reinforcements mentioned in Note 4 (a), Chapter 64 HTS. You have provided a value for Pattern no. 34223 of between $6.50 and $12/pair.

The applicable subheading for the Pattern No. 34223 will be 6404.11.80 (HTS), which provides for footwear with outer soles of rubber/plastics and uppers of textile, sports footwear; tennis shoes, basketball shoes, gym shoes, training shoes and the like, other, valued over $6.50 but not over $12/pair. The general rate of duty will be 90 cents/pair plus 20 percent ad valorem.

The submitted sample of Pattern No. 34223 is not marked with the country of origin. The marking statute, section 304, Tariff Act of 1930, as amended (19 U.S.C. 1304), provides that, unless excepted, 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 its container) will permit, in such a manner as to indicate to the ultimate purchaser in the U.S. the English name of the country of origin of the article.

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 646-733-3042.

Sincerely,

Robert B. Swierupski
Director,

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