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HQ 953556


April 9, 19931

CLA-2 CO:R:C:M 953556 DFC

CATEGORY: CLASSIFICATION

TARIFF NO.: 6406.10.70

Mr. W. Andrew Ryu
Top Line Manufacturing Co.
Red Line Products Inc.
Passaic Industrial Center
Building 1F, 90 Dayton Avenue
Passaic, NJ 07055

RE: Upper, partial; Accessories or Reinforcements; Uppers, external surface area; Composite goods; T.D. 84-59; HRL 084013

Dear Mr. Ryu:

Your letter dated February 2, 1993, addressed to the Area Director of Customs in New York, concerning the tariff classification under the Harmonized Tariff Schedule of the United States (HTSUS), of a partial upper produced in the People's Republic of China, has been referred to us for a direct reply to you. A sample was submitted for examination.

FACTS:

The sample, item no. W-35, is clearly part of an upper because it is the outside and inside collar and tongue of, presumably, a rubber-footed "Bean Boot."

You maintain that the sample is properly classifiable under subheading 6406.10.70, HTSUS, which provides for parts of footwear, uppers and parts thereof, other than stiffeners, other than formed uppers, of textile materials of which over 50 percent of the external surface area (including any leather accessories or reinforcements such as mentioned in note 4(a) to this chapter) is leather.

ISSUE:

Of what material is the partial upper composed?

LAW AND ANALYSIS:

Classification of goods under the HTSUS 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. GRI 6, HTSUS, requires that the GRI's be applied at the subheading level on the understanding that only subheadings at the same level are comparable. The GRI's apply in the same manner when comparing subheadings within a heading.

GRI 2(b), HTSUS, provides in part that "[t]he classification of goods consisting of more than one material or substance shall be according to the principles of Rule 3."

GRI 3, HTSUS, reads in pertinent part as follows:

3. When by application of Rule 2(b) or for any other reason goods are prima facie classifiable under two or more headings, classification shall be effected as follows:

(a) The heading which provides the most specific description shall be preferred to headings providing a more general description. However, when two or more headings each refer to part only of the materials or substances contained in mixed or composite goods. . . those headings are to be regarded as equally specific in relation to those goods, even if one of them gives a more complete or precise description of the goods.

(b) Mixtures, composite goods consisting of different materials or made up of different components, and goods put up in sets for retail sale which cannot be classified by reference to 3(a), shall be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable.

The sample is a "composite good" consisting of leather pieces sewn over a heavy, green woven fabric laminated to a thin foam rubber/plastic (R-P) layer, the collar-lining consisting of a dark blue lightweight, flannel-like fabric laminated to a thicker layer of foam (R-P), metal eyelets, textile tongue and a 9 inch long piece of foam (R-P).

The article is prima facie classifiable under separate subheadings of the tariff schedule which describe only a portion of the materials in the article as whole. Following GRI 3(a), HTSUS, subheading 6406.10.70, HTSUS, supra, which you claim is applicable, and subheading 6406.10.90, HTSUS, which provides for parts of footwear, uppers and parts thereof, other than stiffeners, other than formed uppers, other, of textile material, and subheading 6406.10.65, HTSUS, which provides for parts of footwear, uppers and parts thereof, other than stiffeners, other than formed uppers, of leather, are regarded as equally specific. This requires application of GRI 3(b), HTSUS, supra, governing the classification of composite goods.

The Harmonized Commodity Description and Coding System Explanatory Notes (EN) to the HTSUS, although not dispositive, should be looked to for the proper interpretation of the HTSUS. See, 54 FR 35128 (August 23, 1989). EN VIII to GRI 3(b), at page 4, reads as follows:

(VIII) The factor which determines essential character will vary as between different kinds of goods. It may, for example, be determined by the nature of the materials or component, its bulk, quantity, weight or value, or by the role of a constituent material in relation to the use of the goods.

Based on an examination of the sample, it is our opinion that the essential character of the article is derived from its textile portions. Our rationale for this conclusion is that textile material predominate by bulk, weight, and value over the other materials contained in the article.

A determination of the material which constitutes the external surface area of this partial upper requires an application of note 4(a), HTSUS, which 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[.]

The separate tongue is not considered to be either external surface area or an accessory. See T.D. 84-59. It is to be noted that Customs has taken the position that the term "accessories or reinforcements," although not fully defined, includes any additional material added to an otherwise completed upper as long as the underlying material is a plausible upper material, if not the best material. See Headquarters Ruling Letter (HRL) 084013 dated March 26, 1990. The metal eyelets are considered accessories or reinforcements (A-R) and are not considered external surface area of the upper. Part of each of the two leather pieces are "eyelet stays" in function and, in that area, have the blue woven fabric underneath. This implies A-R especially because "eyelet stays" are named as A-R in Note 4(a) to Chapter, 64, supra. A large majority of each of the two leather pieces has only the foam side of the lining underneath it, while a relatively small portion has blue fabric underneath.

Based on the foregoing, we consider the leather portions to be A-R which results in the partial upper being of "textile materials" within subheadings 6406.10.70-90, HTSUS. Within these subheadings, the partial upper has clearly over 50% leather surface after the A-R's are included. Consequently, the partial upper is classifiable under subheading 6406.10.70, HTSUS, as other parts of uppers of textile materials of which over 50 percent of the external surface area (including any leather accessories or reinforcements such as mentioned in note 4(a) to this chapter) is leather.

HOLDING:

The partial upper is entitled to duty free entry under subheading 6406.10.70, HTSUS.

Sincerely,

John Durant, Director
Commercial Rulings Division


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