HQ 0950240 - Footwear, woman's, casual, slip-on; Visibly coated; Note 3 to Chapter 64 - United States International Trade Commision Rulings

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HQ 950240
February 28, 1992

CLA-2 CO:R:C:M 950240 DFC

CATEGORY: CLASSIFICATION

TARIFF No.: 6402.99.15

Robert D. Stang, Esq.
Grunfeld, Desiderio, Lebowitz & Silverman Counselors at Law
12 East 49th Street
New York, NY 10017

RE: Footwear, woman's, casual, slip-on; Visibly coated; Note 3 to Chapter 64

Dear Mr. Stang:

In a letter dated August 1, 1991, on behalf of E.S. Originals, you inquired as to the tariff classification under the Harmonized Tariff Schedule of the United States (HTSUS), of a woman's, casual, slip-on shoe produced in China. You have also submitted supplementary letters dated November 14, and November 22, 1991, providing us with further information regarding the composition of the plastic and the manufacturing process whereby the plastic coats the fabric. A sample was submitted for examination.

FACTS:

The sample, style A23291, is a woman's slip-on casual shoe with a plastic sole and 1/4 inch heel. The upper consists of two pieces of plastic, one at the toe, the other at the heel, which are joined together by two pieces of a mesh material on either side.

You claim that the plastic upper incorporates a textile mesh visibly coated externally with plastic, i.e., polyvinyl chloride. Consequently, following note 3 to Chapter 64, HTSUS, the plastic coated mesh qualifies as a plastic which requires classification of the sample shoe under subheading 6402.99.15, HTSUS, as other footwear with outer soles and uppers of rubber or plastics, other footwear, 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.

ISSUE:

Should the external surface area of the mesh, which is made of a plastic-coated textile, be considered plastic or textile?

LAW AND ANALYSIS:

Classification of goods under the HTSUS is governed by the General Rules of Interpretation (GRI's). GRI 1 provides that "classification shall be determined according to the terms of the headings and any relative section or chapter notes, and, provided such headings or notes do not otherwise require, according to [the remaining GRI's taken in order]." In other words, classification is governed first by the terms of the headings of the tariff and any relative section or chapter notes.

Note 3 to Chapter 64, HTSUS, provides that "[f]or the purposes of this chapter, the expression 'rubber or plastics' includes any textile material visibly coated (or covered) externally with one or both of those materials."

The Harmonized Commodity Description and Coding System Explanatory Notes (EN) to the HTSUS, although not dispositive should be looked to for the proper interpretation of the HTSUS. See 54 FR 35128 (August 23, 1989). EN (E) to Chapter 64 which is relevant here reads as follows:

(E) It should be noted that for the purposes of this Chapter, the expression "rubber or plastics" includes any textile material visibly coated or covered externally with one or both of those materials, which means that the coating or covering can be seen with the naked eye with no account being taken of any resulting change of colour.

The sample shoe submitted was subjected to analysis by our Customs laboratory in San Francisco. The report on that analysis reads in pertinent part as follows:

The mesh portion is composed of a white nylon base fabric that has been coated with a white plastic. The coating on the mesh can be seen with the naked eye, without the aid of magnification.

After removing the plastic coating, the differences between the coated and uncoated materials are more apparent. . . The yarns are finer, and six-sided geometric pattern is defined and is less oval shaped on the uncoated sample.

You have submitted a laboratory report from Consumers Testing Laboratories of Canton, Massachusetts, on its analysis concerning the visibility of the plastic coating on swatches of the mesh fabric in issue. This report concludes that the plastic coating on the mesh fabric is visible to the naked eye.

We are persuaded by the laboratory reports and our own examination of the sample that the plastic coating on the mesh can be seen by the naked eye. It is our position that plastic occupies over 90% of the external surface area of the sample's upper.

HOLDING:

Style A23291 is dutiable at the rate of 6% ad valorem under subheading 6402.99.15, HTSUS.

Sincerely,

John Durant, Director
Commercial Rulings Division

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