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HQ 950666

November 25, 1991

CLA-2 CO:R:C:M 950666 DWS

CATEGORY: CLASSIFICATION

TARIFF NO.: 6403.91.60; 6404.11.20

Mr. Dale Watanabe
Director of Customs
Nike, Inc.
One Bowerman Drive
Beaverton, OR 97005-6453

RE: Footwear; "Air Flight Huarache"; External Surface Area of the Upper; Chapter 64, Note 4(a); Accessories or Reinforcements; NY 867245

Dear Mr. Watanabe:

This is in response to your letter of October 7, 1991, concerning the classification of the "Air Flight Huarache" under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA).

FACTS:

The "Air Flight Huarache" (product code 153023 140 00) is a boy's high-top, lace-up athletic shoe. The shoe's upper is made of leather, plastic, and textile. What is unique about this shoe is that the "tongue" and the inner component of the upper are the same textile piece. The "tongue" is not sewn to the upper. This gives the entire textile component a "bootie-like" appearance. The entire piece is stitched to the back part of the insole. Contained on the sides of the front part of the upper is silver and black textile trim. Stitched on the back of the textile part of the upper is a black textile pull tab. The shoe has both lower and upper leather eyelet stays. The upper eyelet stays, colored black, partially cover the textile "tongue". However, at the top of the eyelet stays, there is a horizontal, topline strip that will not touch any part of the upper. The lower eyelet stays, colored white, completely cover the textile "tongue". A molded plastic piece , displaying the logo "Nike", is sewn from the mid-section of one side of the shoe and around the back part of the upper to the mid-section of the other side of the shoe. The shoe has a bottom consisting of a molded, plastic outsole and midsole.

ISSUE:

What is the proper classification of the "Air Flight Huarache" under the HTSUSA?

LAW AND ANALYSIS:

Classification of merchandise under the HTSUSA is in accordance with the General Rules of Interpretation (GRI's), taken in order. GRI 1 provides that classification is determined according to the terms of the headings and any relative chapter or section notes.

You claim that the constituent material of the external surface area of the upper is leather and, therefore, it is your position that the merchandise is classifiable under subheading 6403.91.60, HTSUSA, which provides for: "[f]ootwear with soles of rubber, plastics, leather or composition leather and uppers of leather: [o]ther footwear: [o]ther."

Chapter 64, Note 4(a), HTSUSA, provides that:

[t]he 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.

Several of the items, as described, on the shoe cannot be considered in the calculation of the external surface area of the upper because they are "accessories or reinforcements". You agree that the black textile pull tab stitched to the back part of the upper is excluded. You also agree that the silver and black textile trim on the front part of the upper is excluded.

Because the "tongue" and inner component of the upper are the same piece, we find that, in this case, the "tongue" is to be considered in the calculation of the external surface area of the upper. It is our position that the "tongue" in this case is distinguishable from "tongues" like the one in NY 867245, dated October 10, 1991. That case involved the "Air Jordan" athletic shoe. However, the "tongue" was stitched to the textile back inner component which was lasted to the insole. Therefore, the "tongue" was excluded from consideration. In this case, the "tongue" is part of the upper. The "tongue" and the textile back inner component of the "Air Flight Huarache" are the same piece and are, consequently, part of the upper.

Concerning the lower and upper stays, the lower eyelet stays are excluded and the upper eyelet stays are included in the calculation of the external surface area of the upper. The lower eyelet stays partially cover the "tongue" and are excluded under chapter 64, Note 4(a), HTSUSA, as "accessories or reinforcements". However, the upper eyelet stays are not to be excluded. The stays do partially cover the "tongue", but there is also an area at the topline strip of the stays that does not cover the upper in any way. Because of this, we do not find that the upper eyelet stays are "accessories or reinforcements".

Finally, it is our position that the molded, plastic piece bearing the logo "Nike", which wraps around the back portion of the upper, is an "accessory or reinforcement" and is therefore excluded from the calculation of the external surface area of the upper. The plastic piece, which is connected to the upper from midsection to midsection of the shoe, does cover part of the textile upper.

HOLDING:

The black, textile pull tab, the silver and black textile trim, the textile "tongue"/inner component piece, and the upper eyelet stays are to be considered in calculating the external surface area of the upper. The molded, plastic piece and the lower eyelet stays are excluded from consideration.

In light of these findings, if the constituent material of the external surface area of the upper is leather, then the merchandise is classifiable under subheading 6403.91.60, HTSUSA, which provides for: "[f]ootwear with outer soles of rubber, plastics, leather or composition leather and uppers of leather: [o]ther footwear: [c]overing the ankle: [o]ther." The general, column one rate of duty is 8.5 percent ad valorem.

If the constituent material of the external surface area of the upper is textile, then the merchandise is classifiable under subheading 6404.11.20, HTSUSA, which provides for: "[f]ootwear with outer soles of rubber or plastics, leather or composition leather and uppers of textile materials: [f]ootwear with outer soles of rubber or plastics: [s]ports footwear: [h]aving 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 general, column one rate of duty is 10.5 percent ad valorem.

Sincerely,

John Durant, Director
Commercial Rulings Division

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