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HQ 082702


February 6, 1990

CLA-2 CO:R:C:G HQ 082702 WAW

CATEGORY: CLASSIFICATION

TARIFF NO.: 6403.91.6040, 6403.91.9040

Ms. Karen M. Faus
Avia
P.O. Box 23309
Portland, OR 97223

RE: Basketball shoe; external surface area of upper

Dear Ms. Faus:

This is in response to your letter dated April 18, 1989, requesting the classification of Avia athletic footwear under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA).

FACTS:

The footwear at issue is a high-top basketball shoe with a rubber shell molded bottom. The components of the shoe consist of: a leather toe cap, a leather vamp, leather quarters, a plastic strip attached from eyelet stay to eyelet stay around the back of the ankle for support, a hard plastic heel stabilizer, a padded vinyl collar, a vinyl tongue, a vinyl underlay basted to the vamp which extends to the heel, and a fabric lining with foam rubber padding.

ISSUE:

What is the external surface of the upper of the sample athletic footwear for tariff purposes?

LAW AND ANALYSIS

The General Rules of Interpretation (GRI's) set forth the manner in which merchandise is to be classified under the HTSUSA. GRI 1 requires that classification be determined first according to the terms of the headings of the tariff and any relative section or chapter notes and, unless otherwise required, according to the remaining GRI's, taken in order.

Note 4(a) to Chapter 64, HTSUSA, provides 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.

Moreover, General Explanatory Note (D) to Chapter 64 states in pertinent part:

If the upper consists of two or more materials, classification is determined by the constituent material which has the greatest external surface area, no account being taken of accessories or reinforcements such as ankle patches, protective or ornamental strips or edging, other ornamentation (e.g., tassels, pompons or braid), buckles, tabs, eyelet stays, laces or slide fasteners.

It is Customs position that the term "accessories and reinforcements," although not fully defined, includes any additional material added to an otherwise completed upper provided that the underlying material is a plausible upper material, although not necessarily the best material. For example, leather or vinyl are plausible upper materials for an athletic shoe; however, foam/tricot is normally a lining material and is thus not a plausible upper material. Furthermore, when determining the external surface of a shoe for tariff purposes, pieces of material that are attached to a shoe may only be excluded or included as a whole. In no instance may only part of an item be excluded or included from the upper. Since the subject merchandise is composed of various layers of material, the issue to be addressed is which materials should be considered in determining the outer surface of the shoe.

In the instant case, the separate, stitched on, textile tongue and shoelaces are excluded from computation as part of the external surface area of the upper, pursuant to HRL 081305, dated March 10, 1988. Also excluded from the outer surface of the shoe is the 1/2 inch high sidewall of the rubber cupsole, since it is clearly a reinforcement.

Additionally, we have excluded the grey plastic piece around the back of the ankle which is attached at both eyelet stays. This plastic piece only serves as a stiffener around the back of the ankle and its removal exposes additional areas of the leather vamp and the textile outside collar. Similarly, we have excluded the thin, blue, plastic "edging" located on the leather vamp. The edging is not a traditional edging since it is stitched between two pieces of leather and is not at the edge of the upper. Thus, the edging resembles an ornamental strip, as defined in Explanatory Note D to Chapter 64, and is not taken into account in computing the external surface area.

Customs has not excluded the plastic outside counter around the back of the heel from the constituent material of the upper for classification purposes. Although the outside counter is designed primarily as an auxiliary stiffener, when removed it exposes a cardboard counter (impregnated with plastic) which lies on top of the foam/tricot lining layer. Neither of these materials, however, constitutes a plausible exterior upper area for classification purposes.

Furthermore, the textile padded collar of the shoe is not excluded from the upper's external surface area. Although the padded textile collar appears to provide reinforcement and support to the back of the ankle, the collar is an integral part of the shoe as a whole. Additionally, the textile collar comprises more than simply the ankle portion of the shoe, since the lining of the padded collar covers the insole and also comprises the upper's lining in the rear of the shoe. Thus, the collar is not a mere accessory and should be included as part of the constituent material of the upper for classification purposes.

Based on the foregoing analysis, after removing the textile tongue and shoelaces, the gray plastic piece attached to the eyelet stays, and the thin blue plastic edging on the vamp, it is apparent that the leather comprises the greatest external surface area of the shoe, rather than either the textile materials, the rubber or the plastics. Moreover, although there is a plastic coating on the leather surface, the coating is less than .15mm thick, thereby qualifying as leather and not plastic for classification purposes. Thus, it is Customs position that the subject merchandise is properly classifiable under the subheading in the HTSUSA which provides for footwear with leather uppers.

HOLDING:

The sample men's version (822M) basketball shoe is classifiable under subheading 6403.91.6040, HTSUSA, which provides for athletic footwear, in which the upper's external surface is predominately leather; in which the outer sole's external surface is predominately rubber or plastics; which is other than "sports" footwear; which lacks a protective metal toe- cap; in which the top of the upper covers the wearer's ankle bone; whose sole is attached to the upper by a means other than welt stitched construction; and which is larger than adults' American size 5-1/2 and worn only by males. The applicable rate of duty is 8.5% ad valorem. The women's version (822W) basketball shoe is classifiable under subheading 6403.91.9040, HTSUSA, which is identical to the above provision except that it is worn by females in size 4 or larger. The rate of duty for the 822W is 10% ad valorem.

Sincerely,

John Durant, Director

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