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

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