CLA-2 RR:TC:TE 958570 GGD
Erik D. Smithweiss, Esquire
Grunfeld, Desiderio, Lebowitz & Silverman, LLP
245 Park Avenue
New York, New York 10167-3397
RE: Men's Sports Sandals; Notes 3 and 4 to Chapter 64; External
Surface Area of Upper
Dear Mr. Smithweiss:
This letter is in response to your request of August 21,
1995, on behalf of your client, American Sporting Goods,
concerning the classification under the Harmonized Tariff
Schedule of the United States Annotated (HTSUSA) of men's sports
sandals to be imported from the Far East. We assume that the
country of origin will be a country the products of which are
entitled to the Column 1 General Rates of Duty. A sample was
submitted with your request.
FACTS:
The sample, identified by style no. RY 1230, is a men's
sports sandal with a rubber or plastic outer sole and an upper
consisting of plastics and textile material. The front portion
of the sandal's upper, which covers the wearer's instep, is
composed of a textile fabric that has been covered with a visible
layer of cellular plastics material. The rear part of the upper
consists of two side posts and an ankle strap with a hook and
loop closure. The portion of the rear upper that would contact
the wearer's ankle area is composed of two layers of a textile
knit fabric, in between which is a foam material that serves as -2-
cushioning. The textile knit fabric and foam materials, which
are lasted under, and attached to, the footbed, are substantially
covered by a textile fabric covered with a visible layer of
cellular plastics material. This external layer is also lasted
under, and attached to, the footbed. A small portion of the
textile knit fabric extends past the external layer of plastics
and is visible on the sandal's surface. Removal of the outer
layer exposes a substantially complete upper of textile material.
Visual examination of the sandal, however, indicates an upper of
which over 90 percent of the external area (including accessories
and reinforcements) is rubber or plastic.
ISSUE:
Whether the sandals are classified in heading 6404, HTSUS,
as footwear with outer soles of rubber or plastics and uppers of
textile materials; or in heading 6402, HTSUS, as other footwear
with outer soles and uppers of rubber or plastics.
LAW AND ANALYSIS:
Classification under the HTSUS is made in accordance with
the General Rules of Interpretation (GRI). GRI 1 provides that
the classification of goods shall be determined according to the
terms of the headings of the tariff schedule and any relative
Section or Chapter Notes. In the event that the goods cannot be
classified solely on the basis of GRI 1, and if the headings and
legal notes do not otherwise require, the remaining GRI may then
be applied. The Explanatory Notes (EN) to the Harmonized
Commodity Description and Coding System, which represent the
official interpretation of the tariff at the international level,
facilitate classification under the HTSUS by offering guidance in
understanding the scope of the headings and GRI.
Among other merchandise, chapter 64, HTSUS, covers footwear,
gaiters and the like, and parts of such articles. Concerning the
composition of materials which form footwear, note 3(a) to
chapter 64 states that:
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 purpose of
this provision, no account should be taken of any resulting
change of color.... -3-
With respect to uppers which consist of two or more
materials, note 4(a) to chapter 64 states that:
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 EN to chapter 64, HTSUS, indicate that the constituent
material of the outer sole and of the upper, determines
classification in headings 6401 to 6405. The EN also provide
additional examples of features deemed accessories to, or
reinforcements for, the uppers, such as protective or ornamental
strips, other ornamentation (e.g., tassels, pompons or braid),
laces, and slide fasteners. The EN to chapter 64 further suggest
that the constituent material of any lining has no effect on
classification.
Heading 6402, HTSUS, applies to "Other footwear [than the
waterproof footwear of heading 6401] with outer soles and uppers
of rubber or plastics." The EN to heading 6402 indicate that
footwear remains in the 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 externally with plastics).
The textile knit fabric material in the rear part of the
sandal's upper is sturdy, and is lasted under and attached to the
footbed. However, the external layer of textile fabric visibly
covered with plastics substantially covers the knit fabric
material and is also lasted under and attached to the footbed.
This external layer of plastics contributes to the structural
strength of the sandal. Since the rubber or plastic material of
the upper is not similar to the examples of accessories or
reinforcements cited in note 4(a) and the EN to chapter 64,
HTSUS, we find that this material - which comprises over 90
percent of the sandal's external surface area - constitutes the
substance of the sandal's upper. The goods are properly
classified in subheading 6402.99.18, HTSUSA.
HOLDING:
The men's sports sandals, identified by style no. RY 1230,
are properly classified in subheading 6402.99.18, HTSUSA, the
provision for "Other footwear with outer soles and uppers of -4-
rubber or plastics: Other footwear: 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...: Other: Other."
The applicable rate of duty is 6 percent ad valorem.
Sincerely,
John Durant, Director
Tariff Classification
Appeals Division