HQ 085248: Tariff classification of footwear with lammy suede uppers.

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 085248

                                 September 13, 1989


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

          CATEGORY: Classification

          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.

          FACTS:

                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.

          ISSUE:

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




















                                         -2-


          LAW AND ANALYSIS:

                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.
















                                         -3-


                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.






















                                         -4-


          HOLDING:

                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.

                                     Sincerely,




                                     John Durant, Director
                                     Commercial Rulings Division














































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