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HQ 088390


February 19, 1991

CLA-2 CO:R:C:M 088390 DFC

CATEGORY: CLASSIFICATION

TARIFF NO.: 6405.10.00

Mr. Joseph F. Straus
BBC International Ltd.
19 West 34th Street
New York, N.Y. 10001

RE: Footwear, casual, men's. Upper, external surface area

Dear Mr. Straus:

In a letter dated November 28, 1990, you inquired as to the tariff classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA), of certain casual footwear. A sample was submitted for examination.

FACTS:

The sample is a man's casual shoe with a rubber sole. You state that the upper is plastic with leather fibers imbedded into it. There is a fabric backing as a supporting material underneath the plastic. The upper has an approximately 1/2 inch wide plastic/rubber padded collar around the circumference of the top line. The shoe also has a lace up closure and a plastic/rubber overlay at the base of the closure measuring approximately 3 inches in length and 9/16 inch in width.

We note that the shoe has no marking of any kind and we presume that when the shoe is imported it will have a proper country of origin marking.

ISSUE:

What material constitutes the external surface area of the shoe's upper?

LAW AND ANALYSIS:

It is your opinion that because the upper of the shoe is over 90 percent plastics that it is properly classifiable under subheading 6402.99.1560, HTSUSA, as other footwear with outer soles and uppers of rubber or plastics, having uppers of which over 90 percent of the external surface area (including any accessories or reinforcements such as those mentioned in note 4(a) to this chapter) is rubber or plastics. The applicable rate of duty for this provision is 6 percent ad valorem.

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:

4. Subject to note 3 to this chapter

(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;

It has been our position that a piece of material which does not constitute a visible part of the external surface of the upper of a finished shoe should not be considered part of the external surface area of the upper. The upper of the sample has the appearance and the feel of roughed suede leather. However, the plastic base does not appear anywhere on the surface of the upper.

In general, unless there is a special note in Chapter 64 [such as note 3 concerning plastic coated textile or note 4(a) concerning multiple materials], the "external surface" of an upper is determined by the tariff status of the composite
material (not layer) which is topmost on the upper. For example, a leather coated with plastic which is .1 mm thick has a leather "external surface", because the plastic coated leather is "leather" for HTSUSA purposes, even though the outermost layer is unquestionably plastic.

Based on an examination of the sample it is our opinion that its upper should be considered to have an external surface of composition leather.

Inasmuch as Chapter 64 specifically states "leather or composition leather" in several places, e.g., 6404.20, HTSUSA, we do not consider "composition leather" to be included within the term "leather" as used in subheading 6403, HTSUSA.

HOLDING:

The sample shoe is classifiable under subheading 6405.10.00, HTSUSA, as other footwear, with uppers of composition leather. The applicable rate of duty for this provision is 10 percent ad valorem.

Sincerely,

John Durant, Director
Commercial Rulings Division


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