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HQ 083059


December 5, 1989

CLA-2 CO:R:C:G 083059 NLP

CATEGORY: CLASSIFICATION

TARIFF NO.: 6403.91.6040 and 6403.99.6040

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

RE: Avia footwear styles 835M and 840M

Dear Ms. Faus:

This is in response to your inquiry of April 18, 1988, requesting a tariff classification for Avia athletic footwear under the Harmonized Tariff Schedule of the United States (HTSUS). Samples were submitted for examination.

FACTS:

The footwear at issue is AVIA models 835 and 840. The components of each shoe consist of: a leather toe cap, a leather vamp, leather quarters, a leather strip attached from eyelet stay to eyelet stay around the back of the ankle, a hard plastic heel stabilizer, a vinyl tongue, a vinyl underlay basted to the vamp which extends to the heel. The AVIA 835 model has a textile padded collar which is only about 1 inch high and the top of which would fit under the ankle. The AVIA 840 model has a textile padded collar which is about 3 inches high and covers the ankle.

ISSUE:

What is the external surface of the uppers of AVIA models 835 and 840 for tariff classification purposes?

LAW AND ANALYSIS:

Classification of merchandise under the HTSUS is in accordance with the General Rules of Interpretation (GRI's), taken in order. GRI 1 provides that classification is determined in accordance with the terms of the headings and any relevant Section or Chapter notes.

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 surface area, no account being taken of accessories or reinforcements such as ankle patches, edging, ornamentation, buckles, tabs, eyelet stays or similiar attachments.

Furthermore, 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 material. For example, leather or vinyl are plausible upper materials for an athletic shoe, however foam/tricot is normally a lining material and is 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 footwear is composed of various layers of material, the issue to be addressed is which materials should be considered in determining the composition of the external surface area of the upper of the footwear.

In deciding what the external surface of the AVIA models are, we first exclude the separate, stitched-on, textile tongue and shoelaces, pursuant to HRL 081305, March 10, 1988. We would also exclude from the outer surface of the shoe the 1/2 inch high sidewall of the rubber cupsole, since it is clearly a reinforcement.

In addition, we have excluded the white leather piece on the 840 model, which goes around the back of the ankle and is attached at both eyelet stays. This leather piece only serves as
an anchor for the top three eyelets and its removal exposes additional areas of the textile outside collar. We have also excluded the thin, red, fabric "edging" located on the leather vamp. It is not a traditional edging since it is between two pieces of leather and is not at the edge of the upper. Since the edging is clearly an ornamental strip, as defined in Explanatory Note D to Chapter 64, it is not taken into account in deciding the external surface area of the upper.

In determining the constituent material of the footwear's upper, certain parts of the upper have not been excluded. The plastic outside counter around the back of the heel has not been excluded. Even though the outside counter functions primarily as an auxiliary stiffener, when removed it exposes a cardboard counter (impregnated with plastic) which lies on top of the non- woven fabric lining layer. This lining layer, if left, would not form a plausible upper for the footwear in question.

Moreover, the textile padded collars are not excluded from the upper's external surface area. Although their function is to add extra comfort to the shoe and is therefore "accessory- like", the collars are an integral part of the shoe as a whole. The removal of the collars would expose to view more of the wearer's ankle. The linings of the padded collars go all the way down to the insole and serve as 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 of the shoe.

In addition, the leather pieces and the two red, plastic eyelet anchors on the 840 model have not been excluded from its upper. Removal of each of these pieces would expose a substantial area of the non-woven fabric outer lining layer, which could not form a plausible upper for the Avia model 840.

Based on the foregoing analysis, after removing the textile tongue and shoelaces, the leather piece attached to the eyelet stays, and the thin red fabric 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. Although there is a plastic coating on the leather surface, the coating is less than .15mm thick, thereby qualifying the surface as leather and not plastic for classification purposes. Thus, the instant footwear is properly classifiable under HTSUS subheading 6403.

HOLDING:

The AVIA model 840 is classifiable in subheading 6403.91.6040, 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 rate of duty is 8.5% ad valorem.

The AVIA model 835 is classifiable in subheading 6403.99.6040, which provides for athletic footwear as described above, except that the upper does not cover the wearer's ankle bone. The rate of duty is 8.5% ad valorem.

Sincerely,

John Durant, Director

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