HQ 952157: Protest No. 2704-92-100090; Footwear; External Surface Area of the Upper; Embroidery; Elastic Side Panels; HQ 832121; HQ 855268; 6402.99.15

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 952157
                       September 29, 1992


CLA-2 CO:R:C:M 952157 DWS

CATEGORY: Classification

TARIFF NO.: 6402.99.30

District Director
U.S. Customs Service
300 South Ferry Street, Room 2017
Terminal Island
San Pedro, CA 90731

RE: Protest No. 2704-92-100090; Footwear; External Surface Area  
     of the Upper; Embroidery; Elastic Side Panels; HQ 832121;
    HQ 855268; 6402.99.15

Dear Sir:

     This is our response on Application for Further Review of
Protest No. 2704-92-100090, dated January 8, 1992, concerning
your action in classifying and assessing duty on women's footwear
under the Harmonized Tariff Schedule of the United States
(HTSUS).

FACTS:

     The merchandise consists of women's footwear.  The subject
shoe, style no. 74516, has an upper the external surface area of
which is predominately nubuck material.  The upper has elastic
textile side panels and floral textile embroidery on the vamp.  

ISSUE:

     What is the proper classification of the subject women's
shoe under the HTSUS?

LAW AND ANALYSIS:

     Classification of merchandise under the HTSUS is in
accordance with the General Rules of Interpretation (GRI's),
taken in order.  GRI 1 provides that classification is determined
according to the terms of the headings and any relative section
or chapter notes.

      The merchandise was entered under subheading 6402.99.15,
HTSUS, which provides for: "[o]ther footwear with outer soles and
uppers of rubber or plastics: [o]ther: [h]aving uppers of which
over 90 percent of the external surface area . . . is rubber or
plastics: [o]ther."  However, the entries were liquidated under
subheading 6402.99.30, which provides for: "[o]ther footwear with
outer soles and uppers of rubber or plastics: [o]ther: [o]ther:
[f]ootwear of the slip-on type, that is held to the foot without
the use of laces or buckles or other fasteners . . ."

     Counsel for the importer argues that "[t]he only man-made
fiber textile material on the shoe was stitching.  Stitching is
not includable in the external surface area."  We disagree with
counsel's arguments.  The "stitching" which counsel refers to is
actually floral textile embroidery.  In NY 855268, dated August
22, 1990, it was held that textile embroidery is to be taken into
account when determining the composition of the external surface
area of a shoe's upper.

     NY 832121, dated November 18, 1988, dealt with a women's
shoe, the upper of which possessed a strip of textile elastic
across the shoe's instep.  In that ruling it was held that the
textile elastic strip was indeed textile for classification
purposes, and was to be included when determining the composition
of the external surface area of a shoe's upper.

     In light of the decisions in both NY 855268 and NY 832121,
it is our position that the elastic textile side panels and the
floral textile embroidery are to included when determining the
composition of the subject shoe's upper.

     Through a visual examination of the shoe's upper, it is
quite obvious that the elastic textile panels and the floral
textile embroidery make up more than 10 percent of the external
surface area of the shoe's upper. 

     Therefore, the subject women's shoe is classifiable under
subheading 6402.99.30, HTSUS.

 HOLDING:

     The subject women's shoe is classifiable under subheading
6402.99.30, HTSUS, which provides for: "[o]ther footwear with
outer soles and uppers of rubber or plastics: [o]ther: [o]ther:
[f]ootwear of the slip-on type, that is held to the foot without
the use of laces or buckles or other fasteners . . ."

      The protest should be denied in full.  A copy of this
decision should be attached to the Customs Form 19 and provided
to the protestant as part of the notice of action on the protest.

                           Sincerely,



                           John Durant, Director