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HQ 081620


November 30, 1988

CLA-2:CO:R:C:G 081620 SR 826371

CATEGORY: CLASSIFICATION

TARIFF NO.: 6404.11.20.30

Ms. Susan Daniels
Items International Inc.
7700 El Camino Real
Suite 207
Carlsbad, Ca. 92008

RE: Classification of an athletic shoe with everskin overlays on a canvas upper

Dear Ms. Daniels:

This is in reference to your letter of November 9, 1987, requesting the tariff classification of a man's hi-top athletic shoe under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). A sample was submitted.

FACTS:

The merchandise in question is a man's hi-top athletic shoe. The shoe has an upper of canvas and an outer sole of rubber with a rubber foxing band. The upper has turquoise split leather overlays which cover over 50 percent of the external surface. On both sides of each shoe's upper is a decorative patch overlay made of black everskin. Everskin is a plastic coated leather material.

ISSUE:

1. Whether "everskin" is considered a plastic surface or a leather surface.

2. What should be included as the external surface area of the upper.

LAW AND ANALYSIS:

Issue No. 1

The definition of patent leather sets guidelines as to whether coated leather is plastic or leather. The Explanatory Notes constitute the official interpretation of the Harmonized

System at the international level. Explanatory Note 41.09 (1),
defines patent leather as leather coated with a non-transparent, lustrous, mirror-like coating, and is considered to be leather if the plastic coating does not exceed 0.15 mm. (6/1000 inch) thick, and as plastic if over that thickness. These measurements have become the standard guideline for plastic coated leather articles, and should apply to "everskin" as well. Therefore, if the plastic coating on the "everskin" does not exceed 0.15 mm. (6/1000 inch) thick it is considered leather, if over 0.15 mm. (6/1000) thick, it is plastic.

Issue No. 2

Note 4(a) to Chapter 64 of the HTSUSA, states 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, edging, ornamentation, buckles, tabs, eyelet stays or similar attachments." In accordance with this rule, and for purposes of determining the constituent material of the upper, the leather overlays of the shoe are excluded from consideration. Thus the material of the shoe having the greatest external surface area is the canvas or textile under heading 6404 HTSUSA. For the purpose of classifying the product under subheading 6404.11.20, HTSUSA, the leather accessories or reinforcements are included in determining external surface area. At the subheading level 6404.11.20, HTSUSA, provides for footwear "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 leather overlays are sufficient to make up over 50 percent of the external surface of the upper. Therefore, whether or not the everskin is plastic or leather this shoe must be classified under subheading 6404.11.20.30, HTSUSA, as sports footwear having an upper of over 50 percent leather.

HOLDING:
Issue No. 1

The everskin is considered to be leather if the plastic coating does not exceed 0.15 mm. (6/1000 inch) thick. If the plastic coating exceeds 0.15 mm. (6/1000 inch) thick then it is considered to be plastic.

Issue No. 2

The hi-top athletic shoes are classifiable under subheading 6404.11.20.30, HTSUSA, as footwear with outer soles of rubber or plastics, 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.

This classification represents the present position of the Customs Service regarding the dutiable status of the merchandise under the HTSUSA. The HTSUSA is scheduled to replace the TSUS on January 1, 1989. If there are changes before the HTSUSA becomes effective this advice may not continue to be applicable.

Sincerely,

John Durant, Director

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