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HQ 950402


December 18, 1991

CLA-2 CO:R:C:M 950402 NLP

CATEGORY: CLASSIFICATION

TARIFF NO.: 6402.91.40

Mr. Joseph M. Collins
Polo International
1699 S. Hanley Road
St. Louis, MO 63144

RE: Men's high-top athletic hiking shoe; external surface area of the upper; chapter 64; note 4(a) to chapter 64; accessories or reinforcements; subheading 6402.91.70/80/90; HRL 081305; HRL 087788; HRL 950666; NYRL 867245

Dear Mr. Collins:

This is in response to your letter dated September 3, 1991, in which you requested a tariff classification under the Harmonized Tariff Schedule of the United States (HTSUS) for men's high-top athletic hiking shoes. A sample shoe was submitted for our examination.

FACTS:

The sample, labeled ASR #20021, is a men's high-top athletic shoe with a unit-molded plastic bottom and a plastic and textile upper. The unique feature in this shoe is that the "tongue" portion of the upper is integral with the back collar portion of the upper, making a shaft which is like the top of a bootie. The "tongue" is not of the gusseted or bellows type. It is sewn to the upper and is stitched to the inner component of the upper. The "tongue" lays flat with the rest of the collar/bootie portion of the upper. The front bottom portion of the upper has eyelet stays and laces which run in a cylindrical plane above the cylindrical plane of the collar/bootie. The "tongue" and a small amount of the sides of the collar/bootie are of textile; the back and rest of the sides of the collar are plastic. A black piece of plastic with small raised dots is attached to the mid-section of both sides of the shoe and around the back of the shoe above the heel. The shoe also has two sewn- on emblems; one on the "tongue" portion made of textile, the other on the side of the collar made of plastic. In addition to three open eyelet stays, the shoe also has one upper plastic eyelet stay on each side.

ISSUE:

Is the "tongue" portion of the shoe considered to be part of the external surface area of the upper.

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 similar attachments.

You claim that the upper is made of man-made materials as is the plastic unit outsole. Therefore, the shoes should be classified under subheading 6402.99.15, HTSUS, which provides for other footwear with outer soles and uppers of rubber or plastics, other footwear, other, 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..., other.

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, however foam/tricot is normally a lining material and is not a plausible upper material. Moreover, 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.

Several of the items on the shoe are considered accessories and are excluded when determining the external surface area of the upper. The first piece we would exclude is the black piece of plastic around the back of the shoe as it is an accessory and its removal would only expose additional areas of the plastic upper. See, HRL 950666 dated November 22, 1991. In addition, the two emblems are excluded as they are merely ornamentation.

The next issue to be decided is whether the "tongue" portion is excluded when determining the external surface area of the shoe's upper. If the textile tongue is considered in the calculation of the external surface area of the upper, the shoe's upper would be less than 90 percent plastic and the shoe would be classified in subheading 6402.91.70, HTSUS, which provides for other footwear with outer soles and uppers of rubber or plastics, other footwear, covering the ankle, other, other, valued over $3 but not over $6.50/pair or in subheading 6402.91.80, HTSUS, if the shoes are valued over $6.50 but not over $12/pair or in subheading 6402.91.90, HTSUS, if the shoes are valued over $12/pair. If the textile tongue is not included in determining the external surface area of the shoe's upper, the shoe's upper would be over 90 percent plastic and the shoe would be classified in subheading 6402.91.40, HTSUS, which provides for other footwear with outer soles and uppers of rubber or plastics, other footwear, covering the ankle, 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....

Headquarters Ruling Letter 081305, dated March 10, 1988, held that the separate stitched-on tongue was excluded in determining the external surface area of a shoe's upper. While the "tongue" in the subject shoe is stitched on, it is not separate; it is integral with the back collar portion of the upper. However, New York Ruling Letter (NYRL) 867245, dated October 10, 1991, dealt with the classification of the "Air Jordan" athletic shoe, which had a "tongue" portion similar in construction to the subject shoe's "tongue". In the "Air Jordan" shoe the textile tongue was stitched to, and integral with, a textile back inner component which was lasted to the insole, giving the entire textile component a " bootie-like" appearance. NYRL 867245 stated that the textile "tongue" portion of the part referred to as "bootie-like" was not included in determining the external surface area of the shoe's upper.

In this case, the "tongue" portion is stitched-to the textile inner component and to the collar/bootie. However, the "tongue" portion is on a plane lower than a portion of the upper and is partially covered by eyelet stays. Therefore, we would not consider the "tongue" portion to be part of the upper and we would exclude the "tongue" portion in determining the external surface area of the shoe's upper. See, HRL 087788, dated February 26, 1991. However, the collar/bootie is included in determining the external surface area of the upper. Thus, it is apparent that the external surface area of the shoe's upper, even when including the small textile portions of the collar and the accessories and reinforcements, is over 90 percent plastic. The subject shoe is classified in subheading 6402.91.40, HTSUS.

HOLDING:

The subject shoe is classified in subheading 6402.91.40, HTSUS, which provides for other footwear with outer soles and uppers of rubber or plastics, other footwear, covering the ankle, 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 rate of duty is 6 percent ad valorem.

Sincerely,

John Durant, Director
Commercial Rulings Division

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