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HQ 088348


February 26, 1991

CLA-2 CO:R:C:M 088348 DFC

CATEGORY: CLASSIFICATION

TARIFF NO.: 6404.11.20

William J. Maloney, Esq.
Rode & Qualey
Attorneys at Law
295 Madison Avenue
New York, N.Y. 10017

RE: Footwear, athletic. Upper, external surface area; Accessories or reinforcements

Dear Mr. Maloney:

In a letter dated November 5, 1990, you inquired as to the tariff classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA), of two athletic shoes which your client proposes to manufacture in Korea or other countries to be determined at a later date. Samples were submitted for examination.

Exhibit A "Squash" is a man's athletic shoe which does not cover the wearer's ankle. This shoe has a plastic/rubber molded bottom that visibly overlaps the upper by at least 1/4 inch around most of the perimeter of the shoe. The upper has a textile base with leather overlays that cover over 50 percent of the external surface. The textile base is exposed at the front quarter and the sides. The rear third of the textile base is sandwiched between leather overlays and a padded lining also of textile material.

Exhibit B "Volleyball" is a man's athletic shoe which covers the wearer's ankle. The shoe portion which is below the ankle is the same as "Exhibit A" except for a greater exposure of the textile base at the front quarter. The textile base ends just below the ankle and is stitched to a textile collar which covers the ankle.

It is assumed for the purpose of this reply that the leather overlays are either not coated with plastic or if any leather overlay is coated, the coating is less than .15 mm thick and thus that overlay will still be considered leather.

ISSUE:

Does textile or leather constitute the constituent material of the upper having the greatest external surface area?

LAW AND ANALYSIS:

In applying the HTSUSA, the Customs Service must follow the terms of the statute. Classification of goods under the HTSUSA is governed by the General Rules of Interpretation (GRI's). GRI 1 provides that "classification shall be determined according to the terms of the headings and any relative section or chapter notes, and, provided such headings or notes do not otherwise require, according to [the remaining GRI's taken in order]." In other words, classification is governed first by the terms of the headings of the tariff and any relative section or chapter notes.

Legal Note 4(a) to Chapter 64, HTSUSA, reads as follows:

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.

The Explanatory Notes are the official interpretation of the Harmonized System at the international level. General Explanatory Note (D) to Chapter 64 reads 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 your opinion that the "Squash" shoe is classifiable under subheading 6403.99.60, HTSUSA, as footwear with outer soles of rubber, plastics, leather or composition leather and uppers of leather, other, other, for men, youths and boys, with duty at the rate of 8.5 percent ad valorem. You also maintain that the "Volleyball" shoe is properly classifiable under subheading 6403.91.60, HTSUSA, as footwear with outer soles of rubber, plastics, leather or composition leather and uppers of leather, covering the ankle, other, for men, youths and boys, with duty at the rate of 8.5 percent ad valorem.

It is your view that the external surfaces of the uppers of the instant samples are leather. You assert that the leather overlays "cannot be disregarded as 'accessories or reinforcements' because this leather is essential for purposes of making an upper that is suitable for athletic footwear, and because the textile mesh underlying fabric, which is visible on some parts of the upper and which also acts as a lining material, would not, standing alone, form a plausible upper for this footwear."

You cite Headquarters Ruling Letter (HRL) 084013 dated March 26, 1990, for the proposition that "the term 'accessories or reinforcements' includes any additional material added to an otherwise completed upper to the extent that the underlying material after removal of overlying layers would form a plausible upper for the specific footwear in question." It should be noted that this ruling also states that "[i]n our view, a piece of material which does not constitute a visible part of the external surface of the upper of the finished shoe should not be considered part of the external surface area of the upper." Further, in HRL 087430 dated October 22, 1990, Customs took the position that a layer which comprises all of the external surface of the upper is in fact the external surface of the upper even if there is a plausible upper material underneath.

It appears to us that the standard is clear. In a shoe which has an upper comprised of several layers of material, the top layer will be considered the external surface of the upper when that layer covers the whole surface of the upper. However, in the instant case, the textile base is a visible component of the surface area of both shoes, which makes it clear that your claim that the shoe uppers are leather fails this standard.

We disagree with your contention that the textile base is a lining and not a plausible upper by itself. In the rear third of both shoes, the textile base is sandwiched between overlays of leather and a padded textile lining. In those sections of the shoes where the textile padded lining is not present, the textile base is visible as the surface area of the upper. It is our opinion that the textile base is not a mere lining for the leather overlays. Lastly, the textile base is a plausible upper because the importer uses it as such at various places where it shows on the shoe upper. It is our opinion that the leather overlays are present as reinforcements to insure the shoes' durability and support of the wearer's foot.

HOLDING:

Both shoes are classifiable under subheading 6404.11.20, HTSUSA, as footwear with outer soles of rubber, plastics, leather or composition leather and uppers of textile material, 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. Your samples are being returned under separate cover.

Sincerely,

John Durant, Director

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