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HQ 082774


November 29, 1989

CLA-2 CO:R:C:G 082774

CATEGORY: CLASSIFICATION

TARIFF NO.: 6403.91.6060 and 6403.99.6040

Ms. Karen Faus
Traffic/Import
16160 S.W. Upper Boones Ferry Road
Portland, Oregon 97224

RE: Classification of external surface area of sneakers

Dear Ms. Faus:

In a letter dated April 18, 1988, you requested a tariff classification ruling under the Harmonized System for certain styles of AVIA footwear. On September 27, 1989, you spoke with Nancy Plumer of this office and informed her of the HTSUS classifications you were using for AVIA sneaker models 855 and 860. This letter is to confirm your HTSUS classification of the two AVIA models.

FACTS:

The merchandise at issue is AVIA models 855 and 860. The bottoms of both shoes are identical in that they have partial cupsoles with 2 inch gaps on each side, gray outside back counter/stabilizers between the rear sidewalls and the uppers, and EVA midsoles and wedges. The AVIA 855 model has a plastic padded collar which is about 1 inch high and the top of which would fit under the ankle. The AVIA 860 model has a plastic padded collar which is about 2 inches high and an additional textile padded collar which would cover the ankle. In both shoes, the base material of the upper is leather, except for the padded collars.

ISSUE:

Under the HTSUS, what are the tariff classifications of AVIA models 860 and 855?

LAW AND ANALYSIS:

Note 4(a) to chapter 64, HTSUS, states that the material of the upper shall be taken to be the constituent material having the greatest external area, no account being taken of accessories or reinforcements such as ankle patches, edging, ornamentation, buckles, tabs, eyelet stays or similiar attachments. In deciding what the external surfaces of the AVIA models are, certain parts of the uppers must be excluded. The excluded parts of the uppers are:

1. the textile tongues and the shoelaces;

2. the 1/2-inch sidewall of the rubber cupsoles, because they are merely for reinforcement;

3. the gray outside back counter/stabilizer, whose basic function is as an auxiliary stiffener and its removal exposes only an additional portion of the leather heel counter;

4. the metal eyelets; and

5. the gray, plastic, upside-down "v"s on each side of the uppers, whose primary function is to reinforce and anchor the bottom two eyelet stays.

The padded collars are not excluded from the upper's external surface. Although their function is to add extra comfort to the shoe, and is therefore "accessory-like", they appear to be quite integral to the shoe as a whole, especially since their removal would expose to view most of the wearer's ankle. Moreover, the linings of these padded collars go all the way down to the insole and serve as the upper's lining in the rear of the shoe.

As a result of the excluded parts, the leather external surface is clearly larger than either the textile materials or rubber or plastics. Therefore, HTS subheading 6403 applies to the AVIA models.

HOLDING:

The AVIA model 855 would be classifiable in subheading 6403.99.6040, which provides for Footwear with outer soles of rubber, plastics, leather or composition leather and uppers of leather: Other: For men, youths and boys...Other: Tennis shoes, basketball shoes, gym shoes, training shoes and the like for men: Other. The rate of duty is 8.5% ad valorem.

The AVIA model 860 would be classifiable in subheading 6403.91.6040, which provides for Footwear with outer soles of rubber, plastics, leather or composition leather and uppers of leather: Other footwear: Covering the ankle: Other: For men, youths and boys...Other: Tennis shoes, basketball shoes, gym shoes, training shoes and the like for men: Other. The rate of duty is 8.5% ad valorem.

Sincerely,

John Durant, Director

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