CLA-2 CO:R:C:G 084823 CC

Mary Ann Ost
H.Z. Bernstein Co., Inc.
One World Trade Center, Suite 1973
New York, New York 10048

RE: Modification of classification for footwear

Dear Ms. Ost:

This letter concerns modification of the classification of footwear in a ruling issued March 9, 1989 by the District Director at Milwaukee concerning the tariff classification of certain footwear.

FACTS:

As reported in the Milwaukee ruling letter, footwear was submitted for classification. Style N335 is a ladies' quilted satin closed toe, open back slipper with a leather sole. The external surface area of the shoe is composed of 100 percent rayon satin, with a rayon textile flower attached to the middle of the shoe above the toes. The footwear is composed of 18.08 percent textile materials and 15.67 percent rubber and plastics (vinyl), presumably by weight.

It was decided in the Milwaukee ruling letter that Style N335 was subject to a 37.5 percent duty rate under subheading 6404.20.6060 of the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). According to that ruling, the shoe was not classifiable under subheading 6404.20.20, HTSUSA, or subheading 6404.20.40, HTSUSA, since over 10 percent by weight was rubber and plastics. It appears that 6404.20.20/40, HTSUSA, was interpreted as providing only for footwear that was both under 50 percent by weight of textile materials and rubber and plastics and under 10 percent by weight being rubber and plastics.

ISSUE:

What is the proper interpretation of the phrase "not over 50 percent by weight of textile materials and rubber or plastics with at least 10 percent by weight being rubber or plastics" which appears in the qualifying language preceding U.S. subheadings 6404.20.20/40, HTSUSA?

LAW AND ANALYSIS:

In HRL 082614, dated October 17, 1988, the issue of interpretation of the language presented in 6404.20.20/40, HTSUSA, was considered. The language in question is "not over 50 percent by weight of rubber or plastics and not over 50 percent by weight of textile materials and rubber or plastics with at least 10 percent by weight being rubber or plastics." HRL 082614 found that the terms of the subheadings were ambiguous, making it necessary to resort to legislative history to aid in interpreting the statute. Based on the legislative history, it was found that subheadings 6404.20.20/40, HTSUSA, were applicable "to footwear with fabric uppers and leather or composition leather soles which are under 10 percent by weight of rubber and plastics or not over 50 percent by weight of textile materials, rubber and plastics." Thus, according to precedent established in HRL 082614, footwear with fabric uppers and leather or composition of leather soles does not have to be both under 10 percent by weight of rubber and plastics and under 50 percent by weight of textile materials, rubber, and plastics to be classifiable under subheadings 6404.20.20/40, HTSUSA. Footwear with fabric uppers and leather or composition of leather soles which is either under 10 percent by weight of rubber and plastics, or under 50 percent by weight of textile materials, rubber, and plastics is classifiable under subheadings 6404.20.20/40, HTSUSA.

Although Style N335 is over 10 percent by weight of rubber and plastics, it is still classifiable under subheading 6404.20.20 or 6404.20.40, HTSUSA, since it is under 50 percent by weight of textile materials, rubber, and plastics. Because the Milwaukee ruling letter found that Style N335 was not classifiable in 6404.20.20/40 when it was not over 50 percent by weight of textile materials, rubber, and plastics, the Milwaukee ruling was in error.

HOLDING:

The footwear in question, Style N335, is classified under subheading 6404.20.2060, HTSUSA, dutiable at 15 percent, if valued not over $2.50 per pair, and under 6404.20.4060, HTSUSA, dutiable at 10 percent, if valued over $2.50 per pair.

Pursuant to Section 177(d) of the Customs Regulations, the March 9, 1989 ruling letter from the Milwaukee office concerning footwear imported by the Alta Products Corporation is modified accordingly.

Sincerely,

John Durant, Director
Commercial Rulings Division

6cc AD NY Seaport
1cc J. Sheridan NY Seaport
1cc DD Milwaukee, WI
1cc John Durant
1cc Donald Cahill
1cc Legal Reference
CClark library
name: 084823