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HQ 082739


November 24, 1989

CLA-2 CO:R:C:G 082739 WAW

CATEGORY: CLASSIFICATION

TARIFF NO.: 6404.11.2060

Ms. Jane Sheridan
Import Department
Pagoda Trading Company, Inc.
1950 Craig Road
St. Louis, MO 63146

RE: Classification of a woman's athletic shoe Your Style Number: 90004

Dear Ms. Sheridan:

This ruling is in response to your letter of April 25, 1988, requesting the tariff classification of a woman's athletic shoe under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). The sample item will be imported from Taiwan.

FACTS:

The sample merchandise is a woman's athletic shoe with a nylon upper. The upper has split leather overlays around the toe, along the sides, around the heel and throat, and along the eyelets. In addition, there are two Velcro-type closures of split leather across the instep that are designed to tighten or loosen the shoe on the foot. The bottom of the shoe consists of an EVA wedge midsole and a cemented-on rubber outer sole which overlaps the upper at the toe.

ISSUE:

Whether the Velcro-type closures should be considered part of the external surface area of the shoe 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.

In the instant case, we find one heading within the nomenclature whose terms specifically include the article at issue. Subheading 6404.11, HTSUSA, provides for 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. Since the sample article is an athletic shoe with an outer sole of rubber it is properly classifiable within subheading 6404.11, HTSUSA.

To determine the constituent material of the upper of a shoe for tariff purposes Legal Note 4(a) to Chapter 64 provides the following:

(a) 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.

In the subject merchandise, the Velcro-type closures across the instep of the shoe are attachments designed to tighten or loosen the shoe on the foot. Thus, it is clear that pursuant to Legal Note 4(a) the Velcro-type closures are excluded from the computation of the "external surface" of the upper in determining the classification of the shoe at the six-digit international subdivision. The question that we are being asked to address is whether the Velcro-type straps should be included under the United States subdivision at the eight-digit level.

Subheading 6404.11.20, HTSUSA, provides for 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 in this case that the subject merchandise is properly classifiable under subheading 6404.11.20, HTSUSA, since even without including the Velcro-type closures, over 50 percent of the external surface area of the upper is leather. Thus, the question is whether in cases where the Velcro-type closure will be a determining factor in the 50 percent leather measurement they should be included as part of the external surface area under subheading 6404.11.20, HTSUSA.

Customs has previously ruled that regular shoelaces should not be included as "accessories or reinforcements" in the determination of the external surface area of a shoe under subheading 6404.11.20, HTSUSA. See HRL 081305, dated March 10, 1988. It is Customs position, however, that the Velcro-type closures which close the shoe more closely resemble buckles, which are specifically enumerated in Legal Note 4(a), rather than shoelaces. In addition, subheading 6404.11.20, HTSUSA, specifically includes rather than excludes any leather accessories or reinforcements such as those mentioned in Legal Note 4(a) for purposes of computing the external surface area. Accordingly, it is the opinion of this office that the surface of the Velcro-type straps should be included in the computation of the external surface area of the shoe when "accessories or reinforcements" are included in the U.S. tariff subdivision of the international system.

In computing the external surface area of the shoe, Customs recommends that these Velcro-type straps be measured with the strap closed in the manner in which they would be by a person with feet of average width. Furthermore, it is Customs position that only the outer surface of the straps and not the material hidden underneath the straps should be counted towards the "external surface" area under subheading 6404.11.20, HTSUSA.

HOLDING:

The sample article is properly classifiable under subheading 6404.11.2060, HTSUSA, which provides for footwear with outer soles of rubber, plastics, leather or composition leather and uppers of textile materials: Footwear with outer soles of rubber or plastics: 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 is 10.5 percent ad valorem.

Sincerely,

John Durant, Director

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