HQ 089898: Woman's fashion shoe; uppers whose external surface are not over 90 percent plastic; subheading 6402.99.15; NYRL 863678; HRL 073043; HRL 087788; HRL 084574

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 089898

                         April 13, 1992


CLA-2 CO:R:C:M 089898

CATEGORY: Classification

TARIFF NO.: 6402.99.30

Mr. James P. Sullivan
Sullivan & Lynch, P.C.
156 State Street
Boston, MA 02109

RE:  Woman's fashion shoe; uppers whose external surface are
     not over 90 percent plastic; subheading 6402.99.15; NYRL
     863678; HRL 073043; HRL 087788; HRL 084574

Dear Mr. Sullivan:

     This ruling is in response to your letters dated July 1,
1991, and December 3, 1991, on behalf of your client, Bennett
Importing Company, requesting a reconsideration of New York
Ruling Letter (NYRL) 863678, dated June 19, 1991, concerning the
tariff classification of a woman's fashion shoe.  Samples of the
subject footwear were submitted for our examination.

FACTS:

     The product at issue is a woman's below the ankle height
slip-on shoe.  The shoe has a functionally stitched on plastic
upper and a sole composed of a cemented-on molded
rubber/plastic.  The front half of the plastic upper has numerous
rectangular, triangular and circular shaped 1/4 inch cutouts.
Under these cutouts is a visible nylon textile mesh material.

     NYRL 863678, dated June 19, 1991, held that the nylon
textile mesh material in the subject shoe accounted for over 10
percent of the upper's external surface area and, therefore, the
shoe was considered to have an upper of less than 90 percent
plastic. The shoe was then classified in subheading 6402.99.30,
Harmonized Tariff Schedule of the United States (HTSUS), which
provides for other footwear with outer soles and uppers of
rubber or plastics, other footwear, other, footwear with open
toes or open heels; footwear of the slip-on type, that is held to
the foot without the use of laces or buckles or other fasteners,
etc....






     It is the position of the importer that the exterior surface
area of the shoe's upper is over 90 percent plastic and,
therefore, the shoe is properly classified in subheading
6402.99.15, HTSUS, which provides for other footwear with outer
soles and uppers of 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.  In support of the importer's position, you make the
following arguments:

     (1)  The mesh material is a lining and the Explanatory
          Notes to Chapter 64 preclude linings from being
          considered in determining the external surface area
          measurements of an upper.

     (2)  The mesh lining is not part of the surface area of the
          upper because it is on a plane lower than a portion of
          the upper, it is not tactile and it is only partially
          visible.

ISSUE:

     Whether the nylon mesh material is excluded when
determining the constituent material having the greatest
external surface area of the instant shoe's upper.

LAW AND ANALYSIS:

     The General Rules of Interpretation (GRI's) set forth the
manner in which merchandise is to be classified under the HTSUS.
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.

     Chapter 64, HTSUS, provides for the classification of
footwear.  Note 4(a) to Chapter 64, HTSUS, 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.  Therefore, in order to classify this
footwear it must be determined what material makes up the
external surface area of the shoe's upper.

     HRL 073043, dated March 28, 1984, dealt with the
classification of 2 styles of women's shoes.  The first style
was a women's plastic high-heel shoe with an open toe, an open
back and an ankle strap.  The shoe had diamond-shaped stripping

cut-outs (interstices) on the vamp.  Underlying the stripping and
vamp interstices was a nylon mesh material.  The second style was
a women's high-heel, closed toe, closed back and slip-on plastic
fashion pump with an open grid-like plastic stripping upper.
Underlying the open grid interstices was a nylon mesh material.
It was counsel's position that the shoes were classified in item
700.56, Tariff Schedules of the United States (TSUS), which is
essentially the predecessor provision to subheading 6402.99.15,
HTSUS.  The issue presented in HRL 073043 is identical to the
issue presented in this case.

     With respect to the mesh materials, HRL 073043 stated the
following:

          ..., it is our observation that the exposed portions
          are part of the exterior surface area of the uppers.  A
          lining presupposes a material or something which is
          lined.  Here the interstices in both samples display
          so-called linings which actually line nothing.  At the
          interstices the nylon mesh constitutes both the upper
          and the exterior surface area of the upper.

Therefore, HRL 073043 did not consider the mesh material to be a
liner and it was not excluded when the external surface area of
the upper was determined.

     Counsel in HRL 073043 also cited cases to support their
argument that the mesh lining was not a part of the exterior
surface area of the upper because it was on a plane lower than a
portion of the upper.  These rulings, and HRL 084574, dated
November 30, 1989, and HRL 087788, dated February 26, 1991, held
that the tongues in the respective boots were not part of the
exterior surface area of the uppers as the tongues were on a
plane lower than a portion of the uppers and were partially
covered or wholly covered by laces and eyelet facings or stays.
In HRL 073043, the textile mesh material, while on a lower plane
than a portion of the upper, was not wholly or partially covered
but was completely visible and tactile.  Therefore, the textile
mesh material found within the interstices was not a lining
because it lined nothing.  At the interstices the textile mesh
material constituted both the upper and the exterior surface area
of the uppers.  Consequently, the shoes were classified in item
700.59, TSUS, which is essentially the predecessor provision to
subheading 6402.99.30, HTSUS.

     We agree with the conclusion reached in HRL 073043 that the
mesh material is not considered a lining material.  Moreover, the
rationale that was applied in HRL 073043, in relation to the
argument that the mesh material was on a plane lower than the


upper and was excluded in determining the external surface area
of the upper, is equally applicable here.  First, the mesh
material is a different article than a tongue.  Second, the mesh
material here is not wholly or partially covered but is
completely visible and tactile.

     Congress has indicated that earlier tariff rulings must not
be disregarded in applying the HTSUSA.  The conference report to
the 1988 Omnibus Trade Bill, states that "on a case-by-case basis
prior decisions should be considered instructive in interpreting
the HTS[USA], particularly where the nomenclature previously
interpreted in those decisions remains unchanged and no
dissimilar interpretation is required by the text of the
HTS[USA]." H. Rep. No. 100-576, 100th Cong., 2D Sess. 548, 550
(1988).  Since the subject nomenclature in the TSUS and HTSUS
are essentially the same and the articles at issue in HRL 073043
are essentially the same, we find that HRL 073043 is a valid
precedent and supports the conclusion that the mesh material is
not a lining and should not be treated like a tongue.  The mesh
material is included as part of the external surface area of the
shoe's upper and the shoe is classified in subheading
6402.99.30, HTSUS.

HOLDING:

     The shoe is classified in subheading 6402.99.30, HTSUS,
which provides for other footwear with outer soles and uppers of
rubber or plastics, other footwear, other, footwear with open
toes or open heels; footwear of the slip-on type, that is held to
the foot without the use of laces or buckles or other fasteners,
etc....  The rate of duty is 37.5 percent ad valorem.

NYRL 863678 is affirmed.

                                   Sincerely,



                                   John Durant, Director
                                   Commercial Rulings Division