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HQ 958570




February 4, 1997

CLA-2 RR:TC:TE 958570 GGD

CATEGORY: CLASSIFICATION

TARIFF NO.: 6402.99.18

Erik D. Smithweiss, Esquire
Grunfeld, Desiderio, Lebowitz & Silverman, LLP 245 Park Avenue
New York, New York 10167-3397

RE: Men's Sports Sandals; Notes 3 and 4 to Chapter 64; External Surface Area of Upper

Dear Mr. Smithweiss:

This letter is in response to your request of August 21, 1995, on behalf of your client, American Sporting Goods, concerning the classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) of men's sports sandals to be imported from the Far East. We assume that the country of origin will be a country the products of which are entitled to the Column 1 General Rates of Duty. A sample was submitted with your request.

FACTS:

The sample, identified by style no. RY 1230, is a men's sports sandal with a rubber or plastic outer sole and an upper consisting of plastics and textile material. The front portion of the sandal's upper, which covers the wearer's instep, is composed of a textile fabric that has been covered with a visible layer of cellular plastics material. The rear part of the upper consists of two side posts and an ankle strap with a hook and loop closure. The portion of the rear upper that would contact the wearer's ankle area is composed of two layers of a textile knit fabric, in between which is a foam material that serves as -2-
cushioning. The textile knit fabric and foam materials, which are lasted under, and attached to, the footbed, are substantially covered by a textile fabric covered with a visible layer of cellular plastics material. This external layer is also lasted under, and attached to, the footbed. A small portion of the textile knit fabric extends past the external layer of plastics and is visible on the sandal's surface. Removal of the outer layer exposes a substantially complete upper of textile material. Visual examination of the sandal, however, indicates an upper of which over 90 percent of the external area (including accessories and reinforcements) is rubber or plastic.

ISSUE:

Whether the sandals are classified in heading 6404, HTSUS, as footwear with outer soles of rubber or plastics and uppers of textile materials; or in heading 6402, HTSUS, as other footwear with outer soles and uppers of rubber or plastics.

LAW AND ANALYSIS:

Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRI). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative Section or Chapter Notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRI may then be applied. The Explanatory Notes (EN) to the Harmonized Commodity Description and Coding System, which represent the official interpretation of the tariff at the international level, facilitate classification under the HTSUS by offering guidance in understanding the scope of the headings and GRI.

Among other merchandise, chapter 64, HTSUS, covers footwear, gaiters and the like, and parts of such articles. Concerning the composition of materials which form footwear, note 3(a) to chapter 64 states that:
the terms "rubber" and "plastics" include woven fabrics or other textile products with an external layer of rubber or plastics being visible to the naked eye; for the purpose of this provision, no account should be taken of any resulting change of color.... -3-

With respect to uppers which consist of two or more materials, note 4(a) to chapter 64 states that:

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.

The EN to chapter 64, HTSUS, indicate that the constituent material of the outer sole and of the upper, determines classification in headings 6401 to 6405. The EN also provide additional examples of features deemed accessories to, or reinforcements for, the uppers, such as protective or ornamental strips, other ornamentation (e.g., tassels, pompons or braid), laces, and slide fasteners. The EN to chapter 64 further suggest that the constituent material of any lining has no effect on classification.

Heading 6402, HTSUS, applies to "Other footwear [than the waterproof footwear of heading 6401] with outer soles and uppers of rubber or plastics." The EN to heading 6402 indicate that footwear remains in the heading even if it is made partly of one and partly of another of the specified materials (e.g., the soles may be of rubber and the uppers of woven fabric visibly coated or covered externally with plastics).

The textile knit fabric material in the rear part of the sandal's upper is sturdy, and is lasted under and attached to the footbed. However, the external layer of textile fabric visibly covered with plastics substantially covers the knit fabric material and is also lasted under and attached to the footbed. This external layer of plastics contributes to the structural strength of the sandal. Since the rubber or plastic material of the upper is not similar to the examples of accessories or reinforcements cited in note 4(a) and the EN to chapter 64, HTSUS, we find that this material - which comprises over 90 percent of the sandal's external surface area - constitutes the substance of the sandal's upper. The goods are properly classified in subheading 6402.99.18, HTSUSA.

HOLDING:

The men's sports sandals, identified by style no. RY 1230, are properly classified in subheading 6402.99.18, HTSUSA, the provision for "Other footwear with outer soles and uppers of -4-
rubber or plastics: Other footwear: Other: 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...: Other: Other." The applicable rate of duty is 6 percent ad valorem.

Sincerely,

John Durant, Director

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