Footwear; Slipper, woman's; Upper, external surface area; DD 891639 revoked

HQ 956385 August 22 1994 CLA-2 CO:R:C:M 956385 DFC CATEGORY: Classification TARIFF NO.: 6402.99.15 Ms. Maureen Shoule J.W. Hampton, Jr & Co., Inc. 15 Park Row New York, N.Y. 10038 RE: Footwear; Slipper, woman's; Upper, external surface area; DD 891639 revoked Dear Ms. Shoule: Your letter dated February 22, 1994, addressed to the District Director of Customs in Portland, Oregon, on behalf of F. W. Woolworth Co, concerning the classification under the Harmonized Tariff Schedule of the United States (HTSUS), of a woman's slipper produced in China, has ben referred to this office for a response. Specifically, you ask that Customs reconsider the result reached in DD 891639 dated November 5, 1993, issued to you by the Acting District Director of Customs, Portland, Oregon, concerning the classification of this slipper. Pursuant to section 625, Tariff Act of 1930 (19 U.S.C. 1625) as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act, Pub L. 103-182, 107 Stat 2057,2186(1993)(hereinafter "section 625"), notice of the proposed revocation of DD 891639 was published on July 20, 1994, in the CUSTOMS BULLETIN, Volume 28, Number 29. FACTS: The sample shoe, identified as style 9700, is a woman's below the ankle, open toe and open heel slipper with an outer sole and upper of rubber or plastics. The external surface area of the upper (ESAU) is over 90% plastics. In DD 891639 dated November 5, 1993, the Acting District Director of Customs, Portland, Oregon, ruled that style 9700 is classifiable under subheading 6402.99.30, HTSUS, which provides for other footwear with outer soles and uppers of rubber or plastics, not covering the ankle, having uppers of which not over 90 percent of the external surface area is rubber or plastics, other, footwear with open toes or open heels. The applicable rate of duty for this provision is 37.5% ad valorem, The rationale for classifying the slipper under subheading 6402.99.30, HTSUS, was that the ESAU was not over 90% plastics. You claim that style 9700 is properly classifiable under subheading 6402.99.15, HTSUS, which provides for other footwear with outer soles and uppers of rubber or plastics, 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, and not having a foxing or a foxing-like band applied or molded at the sole and overlapping the upper. ISSUE: Is the ESAU of style 9700 over 90% plastics? 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. Upon reconsideration of DD 891639, it is our observation that style 9700 was erroneously classified under subheading 6402.99.30, HTSUS, based on an incorrect measurement of its ESAU. Specifically, the ESAU of the slipper is over 90% plastics rather than not over 90% plastics. An ESAU measurement of over 90% plastics mandates classification of the slipper under subheading 6402.99.15, HTSUS. HOLDING: Style 9700 has an upper the ESAU of which is over 90% plastics. Style 9700 is dutiable at the rate of 6% ad valorem. Accordingly, DD 891639 is hereby revoked. In accordance with section 625, this ruling will become effective 60 days after publication in the CUSTOMS BULLETIN. Publication of rulings or decisions pursuant to section 625 does not constitute a change of practice or position in accordance with section 177.10(c), Customs Regulations (19 CFR 127.10(c)(1))). Sincerely, John Durant, Director Commercial Rulings Division