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HQ 955400




February 7, 1995

CLA-2 CO:R:C:M 955400 DFC

CATEGORY: CLASSIFICATION

TARIFF NO.: 6402.99.30

Area Director of Customs
U.S. Customs Service
6 World Trade Center
New York, New York 10048

RE: Protest 1001-93-101955 Footwear; Uppers, external surface area; T.D. 93-88; HRL's 051937, 089572

Dear Area Director:

This is in response to Protest 1001-93-101955 concerning your action in classifying and assessing duty on a women's slip- on sandal produced in Taiwan. A sample was submitted for examination.

FACTS:

The sample, identified as style #85101, is a woman's strippy, thong, sling-back sandal with a plastic sole. The upper consists of four plastic strips which are encircled by five sliding keepers which are made from plastic which has been completely covered with a metal coating. There is also a metal coated plastic round ornament firmly attached to the vinyl thong. The vinyl sling back closes with a metal buckle.

The entry covering style #85101 was liquidated on February 5, 1993, under subheading 6402.99.30, Harmonized Tariff Schedule of the United States (HTSUS), as other footwear with outer soles and uppers of rubber or plastics, other footwear, other, footwear with open toes or open heels. The applicable rate of duty for this provision is 37.5% ad valorem. The protest was timely filed on April 6, 1993.

The protestant claims that style #85101 is dutiable at the rate of 6% ad valorem under subheading 6402.99.15, HTSUS,

ISSUE:

Does style #85101 have an upper the external surface area of which is over 90% 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]." In other words, classification is governed first by the terms of the headings of the tariff and any relative section or chapter notes.

The competing provisions, in pertinent part, are as follows:

6402 Other footwear with outer soles and uppers of rubber or plastics:

Other footwear:
6402.99 Other:
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
(except footwear having a foxing or a foxing-like band applied or molded at the sole and overlapping the upper and except footwear designed to be worn over, or in lieu of, other footwear as a protection against water, oil, grease or chemicals or cold or inclement weather):
6402.99.15 Other . . . . . . . .

Other:
6402.99.30 Footwear with open toes or open heels; . . .

Note 3 to chapter 64, HTSUS, reads, as follows:

3. 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.

Note 4(a) to chapter 64, HTSUS, reads as follows:

4. Subject to note 3 to this chapter:

(a) The material of the upper shall be taken to be the constituent material having the greatest external surface area, no account being taken of accessories or reinforcements such as ankle patches, edging, ornamentation, buckles, tabs, eyelets stays or similar attachments[.]

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 T.D. 89-80, 54 FR 35127, 35128 (August 23, 1989). In part, EN (D) to chapter 64, HTSUS, provides that "[f]or the purposes of the classification of footwear in this Chapter, the constituent material of the uppers must also be taken into account . . . If the upper consists of two or more materials, classification is determined by the constituent material which has the greatest external surface area . . ."

An analysis was made of a sample shoe taken from the entry made on June 4, 1992. Customs laboratory Report No. 2-92-11478- 001, dated August 21, 1992, stated that metal constitutes 12% of the external surface area of the upper (ESAU) of style #85101. The Customs Laboratory included as "metal", the plastic keepers and the ornament that were completely covered with a metallic coating.

Better Fabrics Testing Bureau Report No. 73101, dated September 23, 1992, submitted by counsel for the protestant, stated that metal covered 2% of the external surface area of the upper of style #85101. This laboratory report listed the metal covered plastic keepers and ornament as plastic. The metal buckle was the sole item reported as metal.

In Headquarters Ruling Letter (HRL) 051937 dated June 6, 1977, the term "exterior surface area of the upper" was defined under the Tariff Schedules of the United States as "whatever is visible and tactile on the surface." On November 17, 1993, in T.D. 93-88 (27 Cust. Bull & Dec. No. 46), Customs published certain footwear definitions used by Customs import specialists in classifying footwear under Chapter 64, HTSUS. Inasmuch as these definitions were provided merely as guidelines and are not to be construed as Customs rulings, they are not dispositive. However, we believe they should be consulted. On page 3 of that document the term "External Surface" was defined, in pertinent part, as follows:

1. The 'external surface' of the upper is, in general, the outside surface of what you see covering the foot (and leg, if applicable) when the shoe is worn. . .

We note that the definition of "external surface" area of the upper promulgated under T.D. 93-88 is essentially the same as the definition set forth in HRL 051937.

In principle, shoe classification is based on measurements of ESAU, in other words, of that material which is on the surface. In practice, however, such determinations are not so simple. For example, if a shoe has a plastic coating over a textile material, regardless of how thin the coating, if that coating is "visible," note 3 to chapter 64, HTSUS, provides that the ESAU is plastic, even though the outside of the upper looks like it is made from textile. On the other hand, the same thin plastic coating on a leather upper, or a plastic coating which is much thicker, even to the point of being almost as thick as the leather it coats, does not prevent the ESAU from being considered leather for tariff purposes. See HRL 089572 dated April 13, 1992.

In the case of a metal coating on a plastic ornament or accessory as exists on style #85101, it is clear that the intent is to make the ESAU look like metal. What means were used to attain this appearance are not known. The metal may have been sprayed on as paint, it may have been electrostatically deposited as ions, or it may have been applied as pre-existing sheets. The thickness of the coating has not been measured. It is our view that neither the method of coating nor its thickness should have any bearing on an ESAU determination. We are concerned only with the material that constitutes the ESAU.

Following EN D to chapter 64, and the definitions of ESAU cited above, it is our position that the metal coating over the plastic keepers and ornament in this case constitutes ESAU. Because, according to the Customs laboratory analysis, metal constitutes 12% of Style #85101, classification as claimed by protestant under subheading 6402.99.15, HTSUS, is precluded.

HOLDING:

The ESAU of Style #85101 is not over 90% plastic.

Style #85101 is dutiable at the rate of 37.5% ad valorem under subheading 6402.99.30, HTSUS.

The protest should be denied. In accordance with Section 3A(11)(b)of Customs Directive 099 3550, dated August 4, 1993, Subject: Revised Protest Directive, this decision, together with the Customs Form 19, should be mailed by your office to the protestant, through counsel, no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with the decision must be accomplished prior to mailing of the decision. Sixty days from the date of the decision the Office of Regulations and Rulings will take steps to make the decision available to Customs personnel via the Customs Rulings Module in ACS and the public via the Diskette Subscription Service, Freedom of Information Act and other public access channels.

Sincerely,

John Durant, Director
Commercial Rulings Division

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