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HQ 956398




November 15, 1994

CLA-2 CO:R:C:M 956398 DFC

CATEGORY: CLASSIFICATION

TARIFF NO.: 6402.19.10; 6402.19.70; 6404.11.20; 6404.11.80; 6404.11.90;

District Director of Customs
P.O. Box 37260
6269 Ace Industrial Dr, Cudahy WI.
Milwaukee, WI 53237-0260

RE: Protest 3701-94-100024; Footwear, sports; Upper, external surface area; Accessories or reinforcements; HQ 084013,085381,953556

Dear District Director:

This is in response to Protest 3701-94-100024 covering a shipment of athletic footwear [baseball shoes] produced in Taiwan. Samples were submitted for examination.

FACTS:

The five sample baseball shoes submitted have full mesh uppers with plastic or leather overlays stitched on top of them.

Protestant entered styles 7001, 7501, 5006, 6006 and 9230 under subheading 6402.19.10, Harmonized Tariff Schedule of the United States (HTSUS), which provides for sports footwear with outer soles and uppers of rubber or plastics and 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.

Style 7001 was classified under subheading 6402.19.70, HTSUS, which provides for sports footwear with outer soles and uppers of rubber or plastics and having a foxing-like band applied or molded at the sole and overlapping the upper, other, valued over $6.50 but not over $12/pair.

Style 7501 was classified under subheading 6404.11.80, HTSUS, which provides for sports footwear with outer soles of rubber, plastics, leather or composition leather and uppers of textile materials, other, valued over $6.50 but not over $12/pair.

Styles 5006 and 6006 were classified under subheading 6404.11.20, HTSUS, which provides for sports footwear with outer soles of rubber, plastics, leather or composition leather and uppers of textile material, 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.

Style 9230 was classified under subheading 6404.11.90, HTSUS, which provides for sports footwear with outer soles of rubber, plastics, leather or composition leather and uppers of textile materials, other, valued over $12/pair.

The entry covering the above-listed styles was liquidated on February 18, 1984. The protest was timely filed on April 12, 1994.

ISSUE:

What is the constituent material which comprises the greatest external surface area of the footwear uppers (ESAU)?

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]." In other words, classification is governed first by the terms of the headings of the tariff and any relative section or chapter notes.

The competing provisions read, as follows:

6402 Other footwear with outer soles and uppers of rubber or plastics:
Sports footwear:

6402.19 Other:
6402.19.10 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 (except footwear having foxing or a foxing-like band applied or molded at the sole and overlapping the upper and except footwear designed to be worn over, or in lieu of other footwear as a protection against water, oil, grease or chemicals or cold or inclement weather). . . . .

Other:

6402.19.70 Valued over $6.50 but not over $12/pair

6404 Footwear with outer soles of rubber, plastics, leather or composition leather and uppers of textile materials: Footwear with outer soles of rubber or plastics: 6404.11 Sports footwear; tennis shoes, basketball shoes, gym shoes, training shoes and the like:
6404.11.20 Having uppers of which over 50 percent of the external surface area (including any leather accessories or reinforce- ments such as those mentioned in note
4(a) to this chapter is leather. . . . .

Other:
Valued over $3 but not over $6.50/pair:
6404.11.70 Other. . . . . . .

6404.11.80 Valued over $6.50 but not over $12/pair. . . . . . .

Note 4(a) to chapter 64, HTSUS, 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 Harmonized Commodity Description and Coding System explanatory Notes to the HTSUS (EN), although not dispositive, should be looked to for the proper interpretation of the HTSUS. See T.D. 89-80, 54 FR 35127, 25128 (August 23, 1989). General EN (D) to chapter 64, HTSUS, which is relevant here, reads, in pertinent part as follows:

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.

In Headquarters Ruling Letter (HRL) 953556 dated April 9, 1993, Customs took 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 HRL 084013 dated March 26, 1990.

It is our opinion that the mesh textile underlying the plastic or leather overlays is a plausible upper material and should be included in determining the constituent material of the uppers. A laboratory analysis of the styles involved revealed that after the accessories and reinforcements were removed, the uppers were almost entirely of textile material [mesh]. Thus, after note 4(a) to chapter 64, HTSUS, supra, is applied, the uppers of the subject styles are almost entirely textile material which mandates their classification under heading 6404, HTSUS.

Protestant cites HRL 085381 dated November 21, 1989, concerning the tariff classification of a glass beaded shoe as authority for his position that the uppers of the footwear styles in issue should be considered plastic rather than textile. The woman's shoe involved in HRL 085381 had an upper the external surface area of which was almost entirely of glass beads except for small gaps between the beads where portions of the underlying fabric were visible. Although the underlying textile was a plausible upper material, Customs ruled that the beaded shoe was more accurately described as having a glass upper instead of a textile upper. The rationale for this position was that the beads were more than a mere accessory or reinforcement because they were so extensive and clearly constituted a significant portion of the ESAU of the shoe. Further, because of the expense and work involved in attaching the glass beads to the upper, the beads were considered to constitute more than an ankle patch, edging, ornamentation or buckle.

Protestant would apply the same rationale used to justify the result reached in HRL 085381 to the subject samples. HRL 085381 has no application here because the ESAU of the beaded shoe was covered almost entirely with glass beads and with very little textile material showing. In the instant case substantial amounts of textile material [mesh] are visible on the surface.

Classification of style 7001 under subheading 6402.19.70, HTSUS, with duty at the rate of 90 cents per pair plus 20% ad valorem was incorrect. It is properly classifiable under subheading 6404.11.80, HTSUS, with duty at the rate of 90 cents per pair plus 20% ad valorem.

HOLDING:

The constituent material which comprises the greatest external surface area of the footwear uppers is textile material.

Styles 7001 and 7501 are dutiable at the rate of 90 cents per pair plus 20% ad valorem under subheading 6404.11.80, HTSUS.

Styles 5006 and 6006 are dutiable at the rate of 10.5% ad valorem under subheading 6404.11.20, HTSUS.

Style 9230 is dutiable at the rate of 20% ad valorem under subheading 6404.11.90, HTSUS.

The protest should be denied. In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, this decision together with the Customs Form 19, should be mailed by your office to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with the decision must be accomplished prior to mailing of the decision. Sixty days from the date of the decision the Office of Regulations and Rulings will take steps to make the decision available to Customs personnel via the Customs Rulings Module in ACS and the public via the Diskette Subscription Service, Freedom of Information Act and other public access channels.

Sincerely,

John Durant, Director
Commercial Rulings Division

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