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HQ 085248

September 13, 1989

CLA-2 CO:R:C:G 085248 DFC


TARIFF NO.: 6402.99.15

Peter T. Mangione, President
Footwear Distributors and Retailers of America 1319 F Street, N.W.
Washington, D.C. 20004

RE: Tariff classification of footwear with lammy suede uppers.

Dear Mr. Mangione:

In a letter dated June 12, 1989, you set forth your views as to why footwear uppers of lammy suede material should be considered as having an external surface area of rubber or plastics. You have also proposed an objective test to create predictability with respect to classification of footwear having uppers of lammy suede in the event that Customs continues its analysis of the surface area of these uppers.


The material involved is an artificial suede used in the manufacture of footwear uppers. It is manufactured by using a textile substrate of cotton cloth which has been napped. The substrate is submerged in a prepared plastic coating. The coated substrate is dipped in a water tank to permit the coating to set. The coated material proceeds to a second immersion in water to wash away any solvents and is then put into a kiln for drying. After this process is completed, the material is sanded to produce a realistic suede look and feel.


What constitutes the external surface area of a lammy suede upper?


Legal Note 3 to Chapter 64, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), provides that "[f]or the purposes of this chapter, the expression 'rubber or plastics' includes any textile material visibly coated (or covered) externally with one or both of those materials."

Legal Note 4(a) to Chapter 64, HTSUSA, reads as follows:

4. Subject to note 3 to this chapter:

(a) The material of the upper shall be 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;

Subheading 6402.99.15, HTSUSA, provides for "footwear with outersoles and uppers of rubber or plastics: having uppers of which over 90 percent of the external surface area (including any accessories or reinforcements such as those mentioned in Note 4(a) to this chapter) is rubber or plastics. . . ."

It is your position that if the lammy suede material is visibly coated with plastics, it is plastic for all purposes of Chapter 64. If that material represents the greatest percentage of the external surface area of the upper, then classification under heading 6402, HTSUSA, is appropriate following Notes 3 and 4(a). Further, classification will be in subheading 6402.99.15, HTSUSA, if that material, when all accessories and reinforcements are taken into account, represents more than 90 percent of the external surface area of the upper.

We do not agree with your contention that the language of Notes 3 and 4(a), to Chapter 64, HTSUSA, requires acceptance of your premise that classification is based on the constituent material of the upper rather than the substances which make up that material. We especially disagree with your statement that the cited legal notes preclude further inquiry into the matter. It is a fundamental principle of statutory construction that the entire context of a statute must be considered and every effort made to give effect to all its language.

It is our opinion that the legal notes to Chapter 64, HTSUSA, must be read in conjunction with the various headings and subheadings of that chapter. Classification under subheading 6402.99.15, HTSUSA, is conditioned upon the uppers having an external surface area of over 90 percent plastics including all accessories and reinforcements mentioned in note 4(a) to that chapter. We view the term "external surface area" as the outer surface of the material constituting the upper.

You claim that when fibers are found on the exterior surface area of the uppers in issue, Customs assumes they occupy more than 10 percent of that area. Information before us is that such an assumption is not made. Footwear is classified at the higher rate only after a laboratory analysis of the uppers indicates that more than 10 percent of the external surface areas are covered by fibers.

In the event that Customs holds to its previous position in this matter, you have suggested an objective standard to ensure predictability in classifying this type of footwear. Specifically, you propose that this type of footwear which, at importation, is accompanied by a certificate from an independent testing laboratory certifying that the plastic coating represents not less than 10 percent of the total thickness of the lammy suede material, would be presumed to be classified as plastic. Further, testing would not be necessary, except on a random sampling basis to ensure that the certifications are correct.

Information before this office from a major port is that most of the footwear samples with uppers of lammy suede material which have been subjected to analysis have had 10 percent or more of the external surface area of their uppers covered by fibers. Further, we have been informed by our chemists that the test you propose would not with practicable certainty ascertain whether the fibers had migrated to the surface in sufficient numbers to change the classification of the footwear. For these reasons we cannot accept your proposed standard, which if adopted would create a presumption that the external surface area of the uppers of this type of footwear is over 90 percent plastics.


Classification of footwear with lammy suede uppers under subheading 6402.99.15, HTSUSA, is dependent upon those uppers having an outer surface which is over 90 percent plastics. At this time we have no alternative except to decide classification of this type of footwear on a case by case basis.


John Durant, Director

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