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NY J81564




March 26, 2003

CLA-2-64: RR: NC: TA: 347 J81564

CATEGORY: CLASSIFICATION

TARIFF NO.: 6404.19.35

Mr. Erik D. Smithweiss
Grunfeld, Desiderio, Lebowitz, Silverman & Klestadt LLP 245 Park Avenue (33rd Floor)
New York, NY 10167-3397

RE: The tariff classification of footwear from China.

Dear Mr. Smithweiss:

In your letter dated February 26, 2003, on behalf of your client E.S. Originals, Inc., you requested a tariff classification ruling.

The submitted half pair sample identified as Style No. 2P442-7, is a woman’s thong style, open-toe, open-heel, slip-on sandal. The upper consists of two approximately ½-inch textile straps that are sewn together to form a Y-configured toe-thong that goes between the first and second toes. The upper has two rows of 3/16-inch wide square plastic sequins that are sewn and cemented on and, you state, “cover the underlying denim fabric.” The three ends of the strap upper all penetrate the rubber/plastic outsole.

You state that the issue is the identity of the material of the upper, as the upper is composed of both textile and plastic components (the textile straps and the plastic sequins). You further state that the plastic sequins comprise the greatest external surface area of the upper (ESAU), are clearly visible to the naked eye, and therefore meet the definition of “plastics” under Note 3. As such, the plastic sequin material cannot be considered “accessory or reinforcement,” but is instead the external surface area of the upper itself.

Chapter 64, Note 3(a) Harmonized Tariff Schedule of the United States (HTS) provides that for the purposes of this chapter, the terms “rubber” and “plastics” include woven fabrics or other textile products with an external layer of rubber or plastics being visible to the naked eye; for the purposes of this provision, no account should be taken of any resulting change of color.

Chapter 64, Note 4(a) (HTS) provides that 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.

You opine that style 2P442-7 is classifiable under subheading 6402.99.18, (HTS) which provides for footwear with outer soles and uppers of rubber or plastics, having uppers of which over 90 percent of the external surface area (including accessories or reinforcements such as those mentioned in note 4(a) to this chapter) is rubber or plastics.

In support of your opinion, you cite HRL 085381 dated November 21, 1989, HQ 081420 dated January 14, 1988 and NY G81670 dated October 12, 2000 as examples of Customs practice of determining ornamentation to be external surface rather than accessory or reinforcement.

The shoe involved in HRL 085381, a glass-beaded women’s sneaker shoe had an upper the external surface area of which was almost entirely of glass beads except for small gaps between the beads where portions of the underlying fabric were visible. Although the underlying textile was a plausible upper material, Customs ruled that the beaded shoe was more accurately described as having a glass upper instead of a textile upper. The rationale for this position was that the beads were more than a mere accessory or reinforcement because they were so extensive and clearly constituted a significant portion of the ESAU of the shoe. Further, because of the expense and work involved in attaching the glass beads to the upper, the beads were considered to constitute more than an ankle patch, edging, ornamentation or buckle.

The shoe involved in HQ 081420, a woman’s oxford completely covered with polyurethane sequins over a textile base, was determined to have an upper of rubber/plastics rather than textile material due to the fact that the textile material was not visible or tactile anywhere of the surface of the shoe. Since visibility of a material is necessary to determine ESAU, Customs had no alternative but to rule that the ornamental sequins comprised the ESAU for that style.

The shoes involved in NY G81670, slip-on thong-style shoes with Y-shaped uppers, and open toes and open heels. The uppers are made up of a textile string encased within rubber/plastic beads and one-inch and ¾-inch rubber/plastic tubing. Here again the ornamental beads and plastic tubing comprised the only material visible and tactile of the surface of the upper.

As you know, many factors are considered when making an ESAU determination for footwear with uppers consisting of different materials. The type and construction of the shoe, the plausibility, completeness and visibility of the materials and the manner in which ornaments are attached are among the considerations to be weighed. In Headquarters Ruling Letter HRL 953556, dated April 9, 1993, Customs took the position that "the term 'accessories or reinforcements,' although not fully defined, includes any additional material added to an otherwise completed upper as long as the underlying material is a plausible upper material, if not the best material." There is no question that the textile on the sandal’s straps is plausible upper material and is the external surface of the upper for style 2P442-7, the only question is whether the plastic sequins which are added to this complete textile upper comprise anything more or less than accessories or reinforcements. Since the plastic sequins are securely fastened both by sewing and cementing, they are more than loosely held appurtenances.

Style 2P442-7 is similar to textile/sequin sandals that are the subject of NY G81353, dated September 18, 2000 and NY H85938 dated December 19, 2001. In these two rulings, securely fastened plastic sequins, which did not completely obscure the underlying textile upper, were deemed accessories or reinforcements. In this regard, Style 2P442-7 has an upper of textile material classified in heading 6404 (HTS).

The applicable subheading for Style No. 2P442-7, will be 6404.19.35, (HTS) which provides for footwear with outer soles of rubber or plastics and uppers of textile material, footwear with open toes or open heels, other. The rate of duty will be 37.5 percent ad valorem.

The submitted sample is not marked with the country of origin. Therefore, if imported as is, will not meet the country of origin marking requirements of 19 U.S.C. 1304. Accordingly, the footwear would be considered not legally marked under the provisions of 19 C.F.R. 134.11 which states, "every article of foreign origin (or its container) imported into the U.S. shall be marked in a conspicuous place as legibly, indelibly, and permanently as the nature of the article (or container) will permit, in such manner as to indicate to the ultimate purchaser in the U.S. the English name of the country of origin of the article."

This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 C.F.R. 177).

A copy of the ruling or the control number indicated above should be provided with the entry documents filed at the time this merchandise is imported. If you have any questions regarding the ruling, contact National Import Specialist Richard Foley at 646-733-3042.

Sincerely,

Robert B. Swierupski
Director,

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