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HQ 957806




April 21, 1995

CLA-2 R:C:M 957806 DFC

CATEGORY: CLASSIFICATION

TARIFF NO.: 6403.99.60; 6403.99.90

Mr. John Qualey
Rogers & Brown
Custom Brokers, Inc.,
2 Cumberland St (29401)
P.O. Box 20160
Charleston, S.C. 29413-0160

RE: Footwear; Uppers, external surface area; Accessories and reinforcements; Plausible upper material; HRL's 953556, , 087430, 952245, 956398

Dear Mr. Qualey:

Your letters dated February 28 and March 1, 1995, addressed to U.S Customs, Charleston, South Carolina, on behalf of Wilson Sporting Goods, concerning the tariff classification of athletic shoes under the Harmonized Tariff Schedule of the United States (HTSUS), has been referred to this office for a response. Samples were submitted for examination.

FACTS:

The samples, produced in Taiwan, consist of three styles of women's shoes (S1310 "Hard Drive," S1350 "Zonal," and S1351 "Zonal") and one style of men's shoes (S1341 "Zonal"). These shoes have rubber soles and uppers of textile and leather. The leather on these uppers covers all of the underlying white, woven, textile fabric [plausible upper material] leaving none of it visible on the surface. However, a separate piece of underlying textile material, an open mesh, is exposed and visible on the inside quarter of the shoe.

ISSUE:

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

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.

Footwear is provided for in Chapter 64, HTSUS. Note 3 to chapter 64, HTSUS, reads, as follows:

3. For the purposes of this chapter, the expression "rubber or plastics" includes any textile material visibly coated (or covered) externally with one or both of those materials.

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, or legally binding, provide a commentary on the scope of each heading of the HTSUS, and are generally indicative of the proper interpretation of the HTSUS. See T.D. 89-80, 54 FR 35127, 35128 (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."

In HRL 087430 dated October 22, 1990, we took the position that a layer which comprises all of the external surface of the upper (ESAU) is in fact the ESAU even if there is a plausible upper material underneath. Therefore, in this instance we consider the leather which completely overlays the white, woven, textile fabric [plausible upper material] as ESAU rather than accessories or reinforcements. See, also HRL 952245 dated July 6, 1993. Further, we consider the open mesh material which is visible and tactile as ESAU. See, HRL 956398 dated November 15, 1994.

HOLDING:

Leather is the constituent material comprising the greatest ESAU of the subject footwear.

Women's styles S1310 "Hard Drive," S1350 "Zonal," and S1351 "Zonal" are classifiable under subheading 6403.99.90, HTSUS, which provides for footwear with outer soles of rubber, plastics, leather or composition leather and uppers of leather, other footwear, other, for other persons, valued over $2.50/pair. The applicable rate of duty for this provision is 10% ad valorem.

Men's style S1341 "Zonal" is classifiable under subheading 6403.99.60, HTSUS, which provides for footwear with outer soles of rubber, plastics, leather or composition leather and uppers of leather, other footwear, other, for men, youths and boys. the applicable rate of duty for this provision is 8.5 ad valorem.

Sincerely,

John Durant, Director
Commercial Rulings Division

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