HQ 955225: Footwear, women's, athletic; Visibly coated; Note 3 to chapter 64

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                            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