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HQ 965574




May 3, 2002

CLA-2 RR:CR:TE 965574 JFS

CATEGORY: CLASSIFICATION

TARIFF NO.: 6402.99.18

Ms. Lillian Ornstein
Lillian Vernon Corporation
One Theal Road
Rye, New York 10580-1450

RE: Classification of Footwear; ESAU; Plastic Glitter

Dear Ms. Ornstein:

This is in response to your ruling request dated March 19, 2002, requesting that Customs classify under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA), certain girl’s footwear.

FACTS:

The sample submitted for consideration, style LV#10881/013138/013134, is a girl’s slip–on shoe, size Large (13-1). The outer sole is constructed of rubber and polyvinyl chloride (PVC) plastic. The material of the upper is cotton twill covered with a layer of plastic and coated with plastic glitter.

ISSUE:

What is the proper classification of footwear that has outer soles of rubber and that has uppers of which 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.

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 with 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) 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 a plastic material of chapter 39. 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. For an additional ruling on similar merchandise, see HQ 965383, dated May 1, 2002.

HOLDING:

Style LV#10881/013138/013134 is 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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