IA 85-93; Footwear; Sandals, ladies; Uppers, external surface area; Textile materials; Note 4(a) to chapter 64

HQ 955463 March 4 1994 CLA-2 CO:R:C:M 955463 DFC CATEGORY: Classification TARIFF NO.: 6404.19.35 District Director of Customs Lincoln Juarez Bridge, Bldg #2 P.O. Box 3130, Laredo, Texas 78044-3130 RE: IA 85-93; Footwear; Sandals, ladies; Uppers, external surface area; Textile materials; Note 4(a) to chapter 64 Dear District Director: This request for internal advice concerning the tariff classification under the Harmonized Tariff Schedule of the United States (HTSUS), of certain sandals was initiated by a letter dated August 6, 1993, from Corrigan Dispatch Company on behalf of Poly GAZ International 2. of New York, NY. Samples of two styles of sandals were submitted for examination. FACTS: Both styles 5311 and 305 are women's slip-on, open toe and open heel thong sandals having rubber/plastic soles and uppers of textile material. The inquirer claims that these sandals are properly classifiable under subheading 6402.99.15, HTSUS, which provides for other footwear with outer soles and uppers of rubber or plastics, other footwear, other. You contend that these sandals are classifiable under subheading 6404.19.35, HTSUS, which provides for footwear with outer soles of rubber, plastics, leather or composition leather and uppers of textile materials, other, footwear with open toes or open heels, other. ISSUE: Are the sandals classifiable under subheading 6402.99.15, HTSUS, as claimed by the inquirer? 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]." Legal Note (LN) 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, eyelet stays or similar attachments. The uppers of both samples are comprised of straps or bands with a gold colored edging which measures approximately .2 inches wide. Pursuant to LN 4(a) the gold colored edging on the sandals is not considered a part of the external surface area of the upper. 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) and (F) to chapter 64 which are relevant,read 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 in colour. (F) Subject to the provisions of (E) above, for the purposes of this Chapter the expression 'textile materials' covers the fibres, yarns, fabrics, felts, nonwovens, twine, cordage, ropes, cables, etc., of Chapters 50 to 60. The EN to heading 64.02 at page 877 reads in part, as follows: This heading covers footwear with outer soles and uppers of rubber or plastics, other than those of heading 6401. Footwear remains in this heading even if it is made partly of one and partly of another of the specified materials (e.g., the soles may be of rubber and the uppers of woven fabric visibly coated or covered with plastics). The thrust of the inquirer's argument is that classification under subheading 6402.99.15, HTSUS, is appropriate following the above cited EN because the uppers are lined with a very flimsy textile material which is visibly coated or covered externally with plastics. An examination of the sandals reveals that the surface of the uppers clearly consists of a melange of "synthetic strip" described in heading 5404, HTSUS, "metalized yarn" described in heading 5605, HTSUS, and/or "synthetic filament yarn" described in heading 5402, HTSUS. Following EN (F) to chapter, 64, HTSUS, these materials qualify as textile materials. Any coating of the textile external surface area of the uppers with plastic cannot be seen with the naked eye. HOLDING: Styles 5311 and 305 are dutiable at the rate of 37.5% ad valorem under subheading 6404.19.35, HTSUS. This decision should be mailed by your office to the internal advice requestor no later than 60 days from the date of this letter. On that date, the Office of Regulations and Rulings will take steps to make the decision available to Customs personnel via the Customs Ruling Module in ACS and the public via the Diskette Subscription Service, Lexis, Freedom of Information Act and other public access channels. Sincerely, John Durant, Director