HQ 089962: Footwear, Boys' Sandals; External Surface Area - Upper; Accessories or Reinforcements; Protest No. 2704-90-003854

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 089962
                        October 23, 1991


CLA-2 CO:R:C:M 089962 DWS

CATEGORY: Classification

TARIFF NO.: 6404.19.35; 6402.99.15

District Director of Customs
300 South Ferry Street, Room 2017
Terminal Island
San Pedro, CA 90731

RE: Footwear, Boys' Sandals; External Surface Area - Upper;
    Accessories or Reinforcements; Protest No. 2704-90-003854

Dear Sir:

     This is our decision on Application for Further Review of
Protest No. 2704-90-003854, dated September 17, 1990, concerning
your action in classifying and assessing duty on boys' sandals
under the Harmonized Tariff Schedule of the United States
Annotated (HTSUSA).

FACTS:

     There are two styles of boys' sandals involved in this
protest and they are both very much alike.  The "Dick Tracy"
sandal, style number L5-2240, has a multi-layered EVA sole.  The
colors of the sole are black and yellow.  The sandal's upper is
made of black casting PVC with matching yellow nylon lining.  The
nylon lining extends beyond the edges of the PVC and clearly
provides the substance of the upper even though partially covered
by the PVC.  Attached to the upper is a black, elasticized, vinyl
heel strap.  Displayed on the upper is the "Dick Tracy" emblem. 
The "Tonka" sandal, style number L5-1998, also has a multi-
layered EVA sole.  The colors of the sole are black, blue, and
white.  The sandal's upper is made of blue casting PVC with
matching blue nylon lining.  Again, the nylon lining extends
beyond the edges of the PVC and clearly provides the substance of
the upper even though partially covered by the PVC.  Attached to
the upper is a blue, elasticized, vinyl heel strap.  Displayed on
the upper is a drawing of a "HyperDriver".

ISSUE:

     What is the proper classification of the subject boys'
sandals under the HTSUSA?

LAW AND ANALYSIS:

     Classification of merchandise under the HTSUSA 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 chapter
or section notes.

     The merchandise was entered under subheading 6402.99.15,
HTSUSA, which provides for:

     [o]ther footwear with outer soles and uppers of rubber or   
     plastics: [o]ther footwear: [o]ther: [h]aving 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: [o]ther.

     However, the merchandise was liquidated under subheading
6404.19.35, HTSUSA, which provides for:

     [f]ootwear with outer soles of rubber or plastics: [o]ther:
     [f]ootwear 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 . . .: [o]ther.

     In understanding the HTSUSA, the Harmonized Commodity
Description and Coding System Explanatory Notes may be utilized. 
The Explanatory Notes, although not dispositive, are to be used
to determine the proper interpretation of the HTSUSA.  54 Fed.
Reg. 35127, 35128 (August 23, 1989).  Explanatory Note D to
Chapter 64 (p.874), HTSUSA, states that:

     [i]f the upper consists of two or more materials,          
     classification is determined by the constituent material    
     which has the greatest external surface area, no account    
     being taken of accessories or reinforcements such as ankle  
     patches, protective or ornamental strips or edging, other   
     ornamentation (e.g., tassels, pompons or braid), buckles,   
     tabs, eyelet stays, laces or slide fasteners.  The         
     constituent material of any lining has no effect on        
     classification.

     Concerning both the "Dick Tracy" and the "Tonka" sandals, we
consider the main component of the external surface area of the
upper to be the textile lining.  It is our position that the PVC
casting and emblem is "an accessory or reinforcement" for tariff
purposes.  Therefore, it is not to be considered in the
determination of the external surface area of the upper.  Because
the PVC casting and emblem may not be considered, the only
material that may be regarded in the determination of the 

external surface area of the upper is the textile lining.

HOLDING:

     Both the subject "Dick Tracy" and "Tonka" boys' sandal are
classifiable under subheading 6404.19.35, HTSUSA, which provides
for:

     [f]ootwear with outer soles of rubber or plastics: [o]ther:
     [f]ootwear 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 . . .: [o]ther. 

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

                           Sincerely,



                           John Durant, Director
                           Commercial Rulings Division