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HQ 081388


April 13 1989

CLA-2 CO:R:C:G 081388 DFC

CATEGORY: CLASSIFICATION

TARIFF NO.: 6402.91.4015; 6404.11.2030

Ms. Pat Schuermann
Brown Group International
8400 Maryland Avenue
P.O. Box 450
St. Louis, Missouri 63166

RE: Tariff Classification of certain footwear manufactured in Korea

Dear Ms. Schuermann:

In a letter dated November 25, 1987, you inquired as to the tariff classification of certain footwear under the Tariff Schedules of the United States and also under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). Inasmuch as the HTSUSA became effective on January 1, 1989, our ruling will be limited to the provisions of that schedule.

FACTS:

Samples designated as Stein Pattern #93707, Champion Pattern #95403 and Barley Pattern # 95402 were submitted for examination.

Stein Pattern #93707 is a men's snow jogger which measures approximately 10 inches in height. It has a polyurethane upper (printed to resemble woven fabric), piping trim across the vamp, vinyl mudguards, partial rubber outside heel counter, EVA wedge midsole and rubber outer sole.

Champion Pattern #95403 is a men's shoe measuring approximately 7-1/4 inches in height. In has a textile upper, suede overlays, PU padded collar, rubber foxing band, EVA midsole and rubber outer sole.

Barley Pattern #95402 is a men's shoe measuring approximately 5-1/2 inches in height. It has a textile upper, split leather overlays, padded collar and tongue, rubber toe bumper, heel stabilizer, EVA midsole and rubber outer sole.

ISSUE:

Does the Stein Pattern #93707 have a rubber or plastic sole, the sidewalls of which rise to a point more than 3cm (1.2 inches) above the top of the outer sole?

What material constitutes the external surface area of the uppers of Champion Pattern #95403?

LAW AND ANALYSIS:

Stein Pattern #93707

Subheading 6402.91.40, HTSUSA, provides in pertinent part for other footwear with outer soles and uppers of rubber or plastics, 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 this chapter) is rubber or plastics except * * * (2) except footwear (other than footwear having uppers which from a point 3cm above the top of the outer sole are entirely of non-molded construction formed by sewing the parts together and having exposed on the outer surface a substantial portion of functional stitching) * * *.

If the rubber heel mold is part of the sole, classification under subheading 6402.91.40, HTSUSA, is precluded because the boot has a rubber or plastic sole, the sidewalls of which rise to a point more than 3cm (1.2 inches) above the top of the outer sole.

A careful examination of the sample shows that the rubber heel mold is simply an overlay onto the upper and not part of the sole. Consequently, the sample is not precluded from classification under subheading 6402.91.40, HTSUSA.

Champion Pattern #95403

Note 4(a) to Chapter 64, HTSUSA, provides that "[t]he 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, edgings, ornamentation, buckles, tabs, eyelet stays or similar attachments."

Subheading 6404.11.20, HTSUSA, provides for footwear with outer soles or rubber, plastics, leather or composition leather and uppers of textile materials, sports footwear, tennis shoes,
basketball shoes, gym shoes, training shoes and the like, having uppers of which over 50 percent of the external surface area (including any leather accessories or reinforcements such as those mentioned in note 4(a) to this chapter) is leather.

It is clear that when both the leather accessories and the reinforcing rubber foxing band are removed you have a textile surface. However, when you only add back to the external surface the leather overlays, a question arises as to the portion of leather on the upper that is under the rubber foxing band, especially since it is considered a rubber part of the exterior surface area under the Tariff Schedules of the United States. Inasmuch as the rubber tape is excluded from computation as external surface area of the upper by Note 4(a) to Chapter 64, HTSUSA, there are two plausible alternatives:

1. The entire leather accessory should be added back with the rubber tape over it removed. In this way we are including only the leather accessories in the upper's external surface area.

2. Only that portion of the leather surface visible in the finished shoe should be included as external surface area.
Consequently, the upper's external surface in that area with three layers, i.e., textile, leather and rubber, would be textile.

It is our view that the first alternative is the more logical position. Therefore, the upper's external surface area is over 50 percent leather which mandates classification of the sample under subheading 6404.11.20, HTSUSA.

Barley Pattern #95402

It is clear based on a visual examination of the sample that more than 50 percent of the external surface area of its upper is leather. Consequently, footwear represented by the sample is classifiable under subheading 6404.11.20, HTSUSA.

HOLDING:

Champion Pattern #95403 and Barley Pattern #95402 are classifiable under subheading 6404.11.2030, TSUSA, as footwear with outer soles of rubber, plastics, leather or composition leather and uppers of textile materials, sports footwear, tennis shoes, basketball shoes, gym shoes, training shoes and the like, having uppers of which over 50 percent of the external surface area (including any leather accessories or reinforcements such as those mentioned in Note 4(a) to this chapter) is leather. The applicable rate of duty for this provision is 10.5 percent ad valorem.

Stein Pattern #93707 is classifiable under subheading 6402.91.4015, HTSUSA, as other footwear with outer soles and uppers of rubber or plastics, 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 this chapter) is rubber or plastics. The applicable rate of duty for this provision is 6 percent ad valorem.

Sincerely,

John Durant, Director

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