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HQ 965383




May 1, 2002

CLA-2 RR:CR:TE 965383 JFS

CATEGORY: CLASSIFICATION

TARIFF NO.: 6402.99.18

Ms. Jane A. Sheridan
Pagoda
8300 Maryland Avenue
St. Louis, Missouri 63105

RE: Classification of Footwear; ESAU; Plastic Glitter

Dear Ms. Sheridan:

This is in response to your ruling request dated December 7, 2001, requesting that Customs classify under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA), certain girl’s footwear.

FACTS:

Two samples of footwear were submitted for consideration. Both styles are a girl’s size 13 and have outer soles of rubber. Style C42583G is an open shank dress shoe with a strap and buckle. The upper is constructed from a woven textile fabric that is completely coated with an adhesive. The adhesive is then covered with a fine plastic glitter, which is then heat bonded to the textile material. Style C42641G is a slip-on dress shoe, the upper of which is manufactured using the same process as that used for Style C42583G, however, the glitter is larger in size. The glitter on the uppers is manufactured from a four inch wide continuous sheet of polyethylene or of polyvinylchloride, which is cut or stamped into plastic flakes ranging in size from 1 mm in diameter to .2 mm in diameter.

ISSUE:

What is the proper classification of footwear that have outer soles of rubber and that have uppers wherein plastic glitter material comprises the greatest external surface area of the upper. LAW AND ANALYSIS

Classification under the HTSUSA is made in accordance with the General Rules of Interpretation (GRI). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative Section or Chapter Notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRI may then be applied.

Among other merchandise, chapter 64, HTSUS, covers footwear, gaiters and the like, and parts of such articles. Classification of footwear is essentially based upon the composition of the outer soles and uppers. The composition of the uppers is determined in accordance to Note 4(a), Chapter 64, which provides that:

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, eyelet stays or similar attachments[.]

The constituent material of the upper that has the greatest external surface area (ESAU) of the instant shoes is the plastic glitter. Plastic glitter is classified in chapter 39 as articles of plastic. Accordingly, the shoes are classified under Heading 6402, HTUSA, which provides for other footwear with outer soles and uppers of rubber or plastics.

In NY E89859, dated December 3, 1999, Customs classified plastic glitter as a textile material in subheading 5601.30.0000, HTSUSA, which provides, in pertinent part, for textile flock and dust and mill neps. The glitter in that case was derived from sheets of metallized plastic, which was cut into strips and further cut into tiny pieces. The rationale for classifying the plastic glitter as flock was that during the manufacturing process the plastic sheeting had been reduced to plastic strip. If plastic strip has an apparent width of 5 mm or less, it is considered a textile for purposes of Section XI of the tariff. See, Note 1(g) to Section XI. It is Customs view that this ruling was in error and Customs is in the process of revoking the ruling. Glitter, as imported, consists of small particles or flakes of plastic and is classified as such. Customs believes that the classification determination of glitter is not solely controlled by the fact that the plastic sheeting from which the glitter was derived had, at one point during the manufacturing process, been reduced to plastic strip.

HOLDING:

Style C42583G and style C42641G are classified under subheading 6402.99.18, HTSUSA, which provides for: Other footwear with outer soles and uppers of rubber or plastics: Other footwear: 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): Other: Other. The general column one duty rate is 6 percent ad valorem.

Sincerely,

John Durant, Director
Commercial Rulings Division

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