HQ 086070: Plastic sandal bottoms

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 086070

                        February 26, 1990

CLA-2 CO:R:C:G 086070  WAW

CATEGORY:  Classification

TARIFF NO.:  6406.99.3030

Mr. Edward H. Epp
DeNewol Soles and Laces
Box 47
St. Francois Xavier
Manitoba Canada
ROH IJO

RE:  Plastic sandal bottoms

Dear Mr. Epp:

     This letter is in response to your request, dated October
30, 1989, for a tariff classification of plastic sandal bottoms
under the Harmonized Tariff Schedule of the United States
Annotated (HTSUSA) manufactured in Canada.  Two samples were
submitted along with your request.

FACTS:

     The sample that was submitted consists of a single pieces of
molded plastic with a patterned sole, a raised patterned heel and
a top side which has a raised plastic anchor between the big toe
and the second toe.  In addition, there is a hole in the plastic
anchor and through the sole at either side to allow for the
attachment of laces, which make up the upper of the sandal.
There are also molded plastic small projections in the arch area
of the top side of the plastic sole which serve as an arch
support for the foot.

ISSUE:

     (1) Whether the merchandise at issue is classifiable as
"footwear," or as "footwear parts."

     (2) If the merchandise constitutes "footwear parts" whether
it is classifiable under subheading 6406.20.0000, HTSUSA, or
under subheading 6406.99.3030, HTSUSA.

LAW AND ANALYSIS:

     The General Rules of Interpretation (GRI's) set forth the
manner in which merchandise is to be classified under the HTSUSA.
GRI 1 requires that classification be determined first according
to the terms of the headings of the tariff and any relative
section or chapter notes and, unless otherwise required,
according to the remaining GRI's, taken in order.

     It is our position that the sample merchandise does not
constitute "footwear" under Headings 6401 to 6405 of the
nomenclature.  Since the inception of the Harmonized Tariff
Schedule, Customs has not relied on the "essential character"
clause of General Rule of Interpretation 2(a), with regard to
footwear uppers without outer soles, in order to classify
imported items as footwear under Headings 6401 to 6405, HTSUSA.
But rather, Customs has consistently maintained that these items
should be classified under Heading 6406, HTSUSA, which provides
for parts of footwear.

     Moreover, it is the opinion of the Customs Service that the
drafters of the international nomenclature did not intend for the
external surface test applicable to outer soles, which is set
forth under Legal Note 4(b) to Chapter 64, to apply to those
soles which were not part of the same shipment, even if there was
no doubt concerning what that material would constitute.  By the
same token, it is Customs position that this policy requires
that footwear bottoms (i.e., a part of footwear upon which the
foot rests but which does not extend up the sides of the foot),
which have no uppers, must also be classified under Heading 6406,
HTSUSA, since without the uppers present it would be impossible
to apply the external surface test to the footwear bottoms.
Accordingly, since the sample merchandise will be imported
without the accompanying uppers, it is properly classifiable
under "parts of footwear" and not under "footwear."

      Subheading 6406.20.0000, HTSUSA, provides for parts of
footwear which includes outer soles and heels, of rubber or
plastics.  The Explanatory Notes to Chapter 64, which constitute
the official interpretation of the tariff at the international
level, define the outer sole as "that part of the footwear which,
when in use, is in contact with the ground."  In the instant
case, the sample article not only has an "outer sole," but it
also possesses characteristics commonly found in an inner sole.
For instance, there is a toe anchor on the top side of the sole
for the laces running between the toes as well as an arch support
which are both traditionally found on the inner sole of a shoe.
Thus, only the lower surface of the sample can properly be called
an "outer sole" while the piece in its entirety is more
appropriately classified by Customs as "a bottom."

     It is Customs position that since the sample merchandise is
more than simply an "outer sole," it is properly classifiable
under subheading 6406.99.3030, HTSUSA, which provides for parts
of footwear other than uppers and parts thereof; which are other
than outer soles and heels of rubber or plastic; and which are
footwear bottoms of rubber or plastic.  Additionally, since the
articles are being imported from Canada they are entitled to a
special lower rate of duty under the United States-Canada Free-
Trade Agreement, upon compliance with origin requirements of
General Note 3(c)(vii), HTSUS.

HOLDING:

     The sample merchandise is classifiable under subheading
6406.99.3030, HTSUSA.  The applicable rate of duty is 4.2 percent
ad valorem.

                                   Sincerely,





                                   John Durant, Director
                                   Commercial Rulings Division