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NY K87401




July 19, 2004
CLA-2-64:RR:NC:247: K87401

CATEGORY: CLASSIFICATION

TARIFF NO.: 6402.99.18

Mr. Roger Crain
Customs Science Services, Inc.
11901 Reynolds Avenue
Potomac, MD 20854-1106

RE: The tariff classification of footwear

Dear Mr. Crain:

In your letter dated June 29, 2004, you requested a tariff classification ruling on behalf of Report Footwear for a women’s shoe. The submitted sample, identified as Platform Shoe Pattern No. DW81211 is a below-the-ankle casual shoe with an outer sole of rubber or plastics and an upper of plastics and textile materials. The shoe has a platform midsole a lace tie closure, two textile mesh side panels and substantial textile stitching along the seam lines of the upper. You have provided an external surface area of the upper (ESAU) percentage measurement of 93 percent rubber/plastic and 7 percent textile when you disregard decorative, functional “dual purpose” textile stitching on the upper. You have also provided an ESAU measurement of 87 percent rubber/plastics and 13 percent textile when you include the stitching. Your inquiry involves our position on whether or not to include “dual purpose” stitching in ESAU measurements.

T.D. 93-88 FOOTWEAR DEFINITIONS dated October 25, 1993 offers some guidance on this issue. Under the heading External Surface it provides in pertinent part:

The “external surface” of the upper is, in general, the outside surface of what you see covering the foot (and leg, if applicable) when the shoe is worn. It does not include (among other things) stitching threads if either functional or forming only the outside of a design.

Under the term Functional, T.D. 93-88 provides:

“Functional” stitching does not include reinforcing stitching which is not strictly necessary. If this is doubtful, remove all the stitching whose threads show on the upper at the meeting of the two pieces. If the two pieces then come apart without using any force, the exposed stitching was “functional”. If they do not, it was not “functional” and the pieces are also held together by a hidden stitch, back tape, etc.

We have cut the threads that comprise the stitching on the upper of Pattern No. DW81211 and find that while certain stitching is functional, other stitching is not. The functional stitching should be disregarded in your ESAU measurement and the non-functional stitching included as accessories or reinforcements (if necessary). Visual examination of the shoe indicates that the non-functional stitching does not account for more than 2 percent of the ESAU. This ruling is being issued based upon the accuracy of your statements regarding the percentage measurements of the component materials comprising the ESAU for this style. This information may be verified at the time of importation.

The applicable subheading for Platform Shoe Pattern No. DW81211 will be 6402.99.18, Harmonized Tariff Schedule of the United States, (HTS), which provides for footwear with outer soles and uppers of rubber or plastics, other, having uppers of which over 90 percent of the external surface area (including accessories or reinforcements) is rubber or plastics, not having a foxing or foxing-like band and not protective, other. The general rate of duty will be 6 percent ad valorem.

The submitted sample is not marked with the country of origin. Therefore, if imported as is, will not meet the country of origin marking requirements of 19 U.S.C. 1304. Accordingly, the footwear 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, in such 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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