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HQ 951100


April 8, 1992

CLA-2 CO:R:C:M DFC

CATEGORY: CLASSIFICATION

TARIFF NO.: 6404.19.25; 6404.19.30

Ms. Jill Peterson
Sam & Libby
1123 Industrial Road
San Carlos, California 94070

RE: Espadrilles;

Dear Ms. Peterson:

In a letter dated November 15, 1991, you inquired as to the tariff classification under the Harmonized Tariff Schedule of the United States (HTSUS) of three espadrilles produced in Spain. Samples were submitted for examination.

FACTS:

The samples are three ladies' size B, slip-on espadrilles, styles "U can have him," "Got to have him," and "Goosebumps." All the samples have soles of rubber/plastics and jute in which the jute fibers have been covered with a thin, transparent, rubber/plastics type material. The upper of style "Goosebumps" has an external surface area of rayon. The upper of style "Got to have him" has an external surface area of cotton and man-made fibers with cotton predominating. It is assumed for the purpose of this reply that the upper of style "U can have him" has an external surface area of cotton.

You maintain that these espadrilles are properly classifiable under subheading 6404.19.25, HTSUS, as footwear with outer soles of rubber, plastics, leather or composition leather and uppers of textile materials, other, footwear of the slip-on type, that is held to the foot without the use of laces or buckles or other fasteners, less than 10 percent by weight of rubber or plastics, with uppers of vegetable fibers.

ISSUE:

Should the thin plastic coating on the jute portion of the outer sole, which is not visible to the naked eye, be removed from the jute and its weight added to the rubber/plastics weight for purposes of determining whether the shoe is less than 10 percent by weight of rubber/plastics?

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 jute, in the areas where the relatively thick (about 1/16 inch) rubber outer sole has been cut out, is covered with an extremely thin coating of rubber/plastics. It is our observation that the plastic coating on the jute is not visible to the naked eye.

Since "rubber or plastics" includes any textile material visibly coated (or covered) externally with one or both of these materials, it is reasonable to ignore rubber/plastic coatings on textiles which are not visible to the naked eye for external surface determinations and for weight breakdown purposes. Further, it is our position that textile layers which are visibly coated with rubber/plastics should be included with the rubber/plastics layer in weight breakdowns.

Laboratory analyses were conducted on samples of all styles involved. In performing these analyses the weights of the thin, transparent, rubber/plastic coating were attributed to the textile components of the footwear. The analysis of the sample representing style "You can have him" revealed that rubber/plastics constitutes 9.9% by weight of this style. The analysis of the sample representing style "Got to have him," revealed that rubber/plastics constitutes 6.9% by weight of this style. Consequently, the samples of these styles are classifiable under subheading 6404.19.25, HTSUS, as footwear with outer soles of rubber, plastics, leather or composition leather and uppers of textile materials, other, footwear of the slip-on type, that is held to the foot without the use of laces or buckles or other fasteners, less than 10 percent by weight of rubber or plastics, with uppers of vegetable fibers.

The laboratory analysis of the sample representing style "Goosebumps" revealed that rubber/plastics constitutes 9.5% by weight of the shoe. Consequently, the sample of this style with a rayon upper is classifiable under subheading 6404.19.30, HTSUS, as footwear with outer soles of rubber, plastics, leather or composition leather and uppers of textile materials, other, footwear of the slip-on type, that is held to the foot without the use of laces or buckles or other fasteners, less than 10% by weight of rubber or plastics, other.

It is suggested that Customs officers at the ports of entry obtain samples from shipments of these types of shoes for weight analysis because variances in weight occur in normal manufacturing which could result in different classifications.

HOLDING:

Styles "U can have him" and "Got to have him" are dutiable at the rate of 7.5% ad valorem under subheading 6404.19.25, HTSUS.

Style "Goosebumps" is dutiable at the rate of 12.5% ad valorem under subheading 6404.19.30, HTSUS.

Sincerely,

John Durant, Director
Commercial Rulings Division


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