CLA-2 CO:R:C:M 955400 DFC
Area Director of Customs
U.S. Customs Service
6 World Trade Center
New York, New York 10048
RE: Protest 1001-93-101955 Footwear; Uppers, external surface
area; T.D. 93-88; HRL's 051937, 089572
Dear Area Director:
This is in response to Protest 1001-93-101955 concerning
your action in classifying and assessing duty on a women's slip-
on sandal produced in Taiwan. A sample was submitted for
examination.
FACTS:
The sample, identified as style #85101, is a woman's
strippy, thong, sling-back sandal with a plastic sole. The upper
consists of four plastic strips which are encircled by five
sliding keepers which are made from plastic which has been
completely covered with a metal coating. There is also a metal
coated plastic round ornament firmly attached to the vinyl thong.
The vinyl sling back closes with a metal buckle.
The entry covering style #85101 was liquidated on February
5, 1993, under subheading 6402.99.30, Harmonized Tariff Schedule
of the United States (HTSUS), as other footwear with outer soles
and uppers of rubber or plastics, other footwear, other, footwear
with open toes or open heels. The applicable rate of duty for
this provision is 37.5% ad valorem. The protest was timely filed
on April 6, 1993.
The protestant claims that style #85101 is dutiable at the
rate of 6% ad valorem under subheading 6402.99.15, HTSUS,
ISSUE:
Does style #85101 have an upper the external surface area of
which is over 90% rubber/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]." In other words, classification is
governed first by the terms of the headings of the tariff and any
relative section or chapter notes.
The competing provisions, in pertinent part, are as follows:
6402 Other footwear with outer soles and uppers of
rubber or plastics:
* * * *
Other footwear:
6402.99 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):
* * * *
6402.99.15 Other . . . . . . . .
* * * *
Other:
6402.99.30 Footwear with open toes or
open heels; . . .
Note 3 to chapter 64, HTSUS, reads, as follows:
3. 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.
Note 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,
eyelets stays or similar attachments[.]
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 T.D. 89-80, 54 FR 35127, 35128 (August 23, 1989). In part,
EN (D) to chapter 64, HTSUS, provides that "[f]or the purposes of
the classification of footwear in this Chapter, the constituent
material of the uppers must also be taken into account . . . If
the upper consists of two or more materials, classification is
determined by the constituent material which has the greatest
external surface area . . ."
An analysis was made of a sample shoe taken from the entry
made on June 4, 1992. Customs laboratory Report No. 2-92-11478-
001, dated August 21, 1992, stated that metal constitutes 12% of
the external surface area of the upper (ESAU) of style #85101.
The Customs Laboratory included as "metal", the plastic keepers
and the ornament that were completely covered with a metallic
coating.
Better Fabrics Testing Bureau Report No. 73101, dated
September 23, 1992, submitted by counsel for the protestant,
stated that metal covered 2% of the external surface area of the
upper of style #85101. This laboratory report listed the metal
covered plastic keepers and ornament as plastic. The metal
buckle was the sole item reported as metal.
In Headquarters Ruling Letter (HRL) 051937 dated June 6,
1977, the term "exterior surface area of the upper" was defined
under the Tariff Schedules of the United States as "whatever is
visible and tactile on the surface." On November 17, 1993, in
T.D. 93-88 (27 Cust. Bull & Dec. No. 46), Customs published
certain footwear definitions used by Customs import specialists
in classifying footwear under Chapter 64, HTSUS. Inasmuch as
these definitions were provided merely as guidelines and are not
to be construed as Customs rulings, they are not dispositive.
However, we believe they should be consulted. On page 3 of that
document the term "External Surface" was defined, in pertinent
part, as follows:
1. The 'external surface' of the upper is, in general,
the outside surface of what you see covering the foot
(and leg, if applicable) when the shoe is worn. . .
We note that the definition of "external surface" area of
the upper promulgated under T.D. 93-88 is essentially the same as
the definition set forth in HRL 051937.
In principle, shoe classification is based on measurements
of ESAU, in other words, of that material which is on the
surface. In practice, however, such determinations are not so
simple. For example, if a shoe has a plastic coating over a
textile material, regardless of how thin the coating, if that
coating is "visible," note 3 to chapter 64, HTSUS, provides that
the ESAU is plastic, even though the outside of the upper looks
like it is made from textile. On the other hand, the same thin
plastic coating on a leather upper, or a plastic coating which is
much thicker, even to the point of being almost as thick as the
leather it coats, does not prevent the ESAU from being considered
leather for tariff purposes. See HRL 089572 dated April 13,
1992.
In the case of a metal coating on a plastic ornament or
accessory as exists on style #85101, it is clear that the intent
is to make the ESAU look like metal. What means were used to
attain this appearance are not known. The metal may have been
sprayed on as paint, it may have been electrostatically deposited
as ions, or it may have been applied as pre-existing sheets. The
thickness of the coating has not been measured. It is our view
that neither the method of coating nor its thickness should have
any bearing on an ESAU determination. We are concerned only with
the material that constitutes the ESAU.
Following EN D to chapter 64, and the definitions of ESAU
cited above, it is our position that the metal coating over the
plastic keepers and ornament in this case constitutes ESAU.
Because, according to the Customs laboratory analysis, metal
constitutes 12% of Style #85101, classification as claimed by
protestant under subheading 6402.99.15, HTSUS, is precluded.
HOLDING:
The ESAU of Style #85101 is not over 90% plastic.
Style #85101 is dutiable at the rate of 37.5% ad valorem
under subheading 6402.99.30, HTSUS.
The protest should be denied. In accordance with Section
3A(11)(b)of Customs Directive 099 3550, dated August 4, 1993,
Subject: Revised Protest Directive, this decision, together with
the Customs Form 19, should be mailed by your office to the
protestant, through counsel, no later than 60 days from the date
of this letter. Any reliquidation of the entry in accordance
with the decision must be accomplished prior to mailing of the
decision. Sixty days from the date of the decision the Office of
Regulations and Rulings will take steps to make the decision
available to Customs personnel via the Customs Rulings Module in
ACS and the public via the Diskette Subscription Service, Freedom
of Information Act and other public access channels.
Sincerely,
John Durant, Director
Commercial Rulings Division