Footwear, women's, athletic; Visibly coated; Note 3 to chapter 64

HQ 955225 December 21, 1993 CLA-2 CO:R:C:M 955225 DFC CATEGORY: Classification TARIFF NO.: 6402.91.40. Erik D. Weiss, Esq. Grunfeld, Desiderio, Lebowitz & Silverman Counsellors at Law 245 Park Avenue New York, NY 10167-0002 RE: Footwear, women's, athletic; Visibly coated; Note 3 to chapter 64 Dear Mr. Weiss: This is in reference to your letter dated September 14, 1993, to the Customs office in New York, on behalf of Mercury International Trading Co., concerning the tariff classification under the Harmonized Tariff Schedule of the United States (HTSUS), of certain women's athletic footwear. Your letter, together with the samples submitted, has been referred to this office for a response. FACTS: The sample, identified as Pattern K3WJ-B766, is a women's over-the-ankle athletic shoe bearing the "Jordache" tradename. It has a unit-molded plastic sole and an upper the external surface area (ESAU) of which appears to be made predominately of plastic. An examination of the separate sole submitted with the sample footwear shows that the overlap of the upper by the sole does not constitute a foxing-like band. The upper has a textile topline trim, a textile overlay at the back above the heel, and two mesh inserts at the sides. You state that if the mesh inserts are "textile," the ESAU of the sample shoe, including accessories or reinforcements, will not be over 90% rubber or plastics. If the mesh inserts are "rubber or plastics," the ESAU will be over 90% rubber or plastics. You assert that the mesh inserts are visibly coated with plastic which makes them "plastic" within the purview of note 3 to chapter 64, HTSUS. Therefore, classification of the subject footwear under subheading 6402.91.40, HTSUS, is appropriate. -2- ISSUE: Should the external surface area of the mesh, which is made of a plastic-coated textile, be considered "plastic" or "textile" for tariff purposes? 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. A visual examination with the naked eye of both the "coated" and "uncoated" mesh swatches reveals that one is coated with a white plastic. The "coated" mesh appears thicker than the "uncoated" mesh, and more substantial. Consequently, inasmuch as the mesh is considered "plastic" for tariff purposes, the sample footwear has an ESAU of over 90% plastics which requires its classification under subheading 6402.91.40, HTSUS, as other footwear with outer soles and uppers of rubber or plastics, other footwear, covering the ankle, 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 the chapter) is rubber or plastics, other. -3- HOLDING: The external surface area of the mesh inserts is considered "plastic" for tariff purposes following note 3 to chapter 64, HTSUS. Pattern K3WJ-B766 is dutiable at the rate of 6% ad valorem under subheading 6402.91.40, HTSUS. Sincerely, John Durant, Director Commercial Rulings Division