HQ 954928: Footwear; Pump, ladies'; Upper, external surface area; Cork

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                           HQ 954928 

                       September 23, 1993 

CLA-2  CO:R:C:M  954928 DFC 

CATEGORY:  Classification 

TARIFF NO.:  6405.90.90

Sherry L. Singer, Esq.
Singer & Singh
469 Seventh Avenue, Suite 1300
New York, New York  10018 

RE:  Footwear;  Pump, ladies';  Upper, external surface area;
     Cork 

Dear Ms. Singer: 

     In a letter dated July 28, 1993, to the Regional
Commissioner of Customs, New York, on behalf of J.P. Original
Corp., you inquired as to the tariff classification under the
Harmonized Tariff Schedule of the United States (HTSUS), of a
woman's high heeled pump shoe, style 96954, manufactured in
China.  Your letter, together with the sample, was forwarded to
this office for a response. 

FACTS:     

     The sample shoe has a rubber/plastic sole.  Its upper
consists of bits of cork stuck to woven fabric by use of plastic
resins.  A small percentage of the cork bits are covered by
"sparkles."  However, the presence of the "sparkles" on the upper
does not affect the classification of the shoe. 

ISSUE:

     What material constitutes the external surface area of the
upper? 

LAW AND ANALYSIS:

     GRI 1 provides that "classification shall be determined
according to the terms of the headings and any relative section
or chapter notes, and, provided such headings or notes do not
otherwise require, according to [the remaining GRI's taken in
order]."  In other words, classification is governed first by the
terms of the headings of the tariff and any relative section or
chapter notes. 


                              -2- 

     Note 4(a) to chapter 64, HTSUS, 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. 

     The Harmonized Commodity Description and Coding System
Explanatory Notes (EN) to the HTSUS, although not dispositive
should be looked to for the proper interpretation of the HTSUS.
See 54 FR 35128 (August 23, 1989).  EN (E) to  Chapter 64, HTSUS,
states that "[i]t should be noted that for 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, which means that the coating or covering can be
seen with the naked eye with no account being taken of any
resulting change of colour."  

     EN (F) to Chapter 64, HTSUS, states that "[s]ubject to the
provision of (E) above, for the purposes of this Chapter the
expression 'textile materials' covers the fibers, yarns, fabrics,
felts, nonwovens, twine, cordage, ropes, cables, etc., of
Chapters 50 to 60." 

     It has been noted that if sheets of this material were
imported, they would be classified in accordance with the legal
notes to Chapter 59, HTSUS, as "impregnated, coated or covered or
laminated textile fabrics," rather  than as "cork" or
"agglomerated cork." in Chapter 45, HTSUS.  Therefore, following
EN (F) to Chapter 64, supra, it is suggested that the upper of
this pump is of "textile material.  

     We do not agree.  It is our observation that the bits of
cork are what one sees and touches and logically should be
considered as "external surface area" of the upper rather than
the textile material hidden underneath.  Clearly, cork
constitutes the greatest external surface area of the upper.  See
Ugg International, Inc. v. United States, Slip Op. 93-16 
(Ct. Int'l Trade, decided February 4, 1993).   









                              -3- 

     The shoe is classifiable under subheading 6405.90.90, HTSUS,
which provides for other footwear, other, other.

HOLDING:

     Cork constitutes the greatest external surface area of the
pump's upper. 

     Footwear represented by style 96954 is dutiable at the rate
of 12.5% ad valorem under subheading 6405.90.90, HTSUS.       

     
                                   Sincerely,



                                   John Durant, Director 
                                   Commercial Rulings Division