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HQ 955713




September 13, 1994

CLA-2 CO:R:C:M 955713 DFC

CATEGORY: CLASSIFICATION

TARIFF NO.: 6402.91.60-90

William J. Maloney, Esq.
Rode & Qualey
Attorneys at Law
295 Madison Avenue
New York, N.Y. 10017

RE: Footwear; Uppers, external surface area; Tongues; Liners; T.D. 84-59 HRL's 084574, 089265, 953219, 950666; NYRL 871167; NYRL 891314 affirmed

Dear Mr. Maloney:

In a letter dated January 7, 1994, on behalf of Pagoda Trading Co., Inc., you asked for reconsideration of the result reached in New York Ruing Letter (NYRL) 891314, dated November 1, 1993, concerning the tariff classification under the Harmonized Tariff Schedule of the United States (HTSUS), of two pairs of women's athletic shoes designated as pattern nos. 24510W and 24538W. A sample of pattern no. 24538W was submitted for examination.

FACTS:

The shoes involved were described in NYRL 891314 as follows:

The shoes are women's high-top athletic shoes with unit molded plastic soles, not considered to have foxing-like bands, and plastic uppers. Although the uppers of the two shoes are almost identical in appearance, they have substantial difference s in construction. Pattern 24510W has a removable textile bootie-like liner whi ch shows through the throat where other, more traditionally constructed shoes would have a tongue, through four open areas in the shoes, and above the top of the upper, The shoe cannot be worn without the liner, nor the liner, in normal use, without the shoe. Pattern no. 24538W has a non-removable bootie-like liner which has no sole and is attached to the shoe upper at the toe and heel. In this shoe, the four areas of the upper that were open on the other style, are filled in with clear plastic sheets.

2

The external surface area of the uppers was determined as follows:

Both shoes have textile pull tabs which we consider to be external surface area of the upper (ESAU), where they are the only material covering the foot, and accessories or reinforcements (A/R) where they are covering other upper material. Both shoes have plastic A/R overlays on the front of the liners. Neither liner has anything which permits us to distinguish what portion of the liner could be considered to be tongue. By your measurement, including A/R, Pattern 24510W has 24 percent ESAU of textile, Pattern 24538W has 17 percent.

Both shoes were classified, if valued over $3 but not over $6.50 per pair, under subheading 6402.91.70, HTSUS, which provides for other footwear with outer soles of rubber or plastics, other, covering ankle, of which not over 90% of the external surface area of the uppers (including accessories or reinforcements) is rubber or plastics. The applicable rate of duty for this provision is 90 cents/pr plus 37.5% ad valorem. If valued differently, the applicable subheadings would be 6402.91.60 through 6402.91.90, depending on value per pair.

ISSUE:

Whether that portion of the liner which appears in the open space between the eyelet stays or facings should be included as 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 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.

Legal Note 4(a) to chapter 64, HTSUS, 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."

In T.D. 84 -59 (18 Cust. Bull. 166), which is relevant here, Customs set forth its position as to whether tongues should be included as ESAU. It reads in pertinent part as follows:

It has consistently been Customs position that the exterior surface area of the upper is whatever is visible and tactile on the surface excepting such things as buttons, strips and other loosely attached appurtenances. In those cases where the tongue was held not to be part of the exterior surface area of the upper, it was on a plane lower than a portion of the upper and was partially or wholly covered by laces and eyelet facings or stays.

You note that in NYRL 891314 Customs stated that it could not distinguish what portion of either liner could be considered to be tongue. You maintain that the result reached in NYRL 891314, namely, that the liner material exposed in the opening between the eyelet stays and covered by laces is included as ESAU, is inconsistent with Customs long-standing policy that tongues and other components located in the area normally occupied by tongue and performing the function of a tongue, are not considered part of the ESAU. See T.D. 84-59.

You state that Customs policy to exclude "tongues" from inclusion as ESAU is not limited to the traditional flap-type tongue but also extends to other components which protect the dorsal closure area of the foot. In support of this statement you cited HRL 984574, dated November 30, 1989, and HRL 089265, dated August 27, 1991. In HRL 084574 Customs ruled that a bellows-type tongue was not considered to be part of the ESAU because the plane curve of the tongue was on a lower plane than the outer plane curve made up of the shaft, the eyelet stays, and the laces that connect the eyelet stays. Also, in HRL 089265 Customs ruled that a qusset on the front of a boot shaft was not considered to be part of the ESAU because the gusset was on a plane lower than a portion of the upper and is partially or wholly covered by laces and eyelet facings or stays. It is our interpretation of these rulings that the bellows-type tongue and the gusset are more akin to a "tongue" than the exposed portion of the liner which appears in the opening between the eyelet stays on the footwear in issue. Thus, application of the rule set out in T.D. 84-59 would be appropriate.

HRL 953219 dated February 9, 1993, concerned the tariff classification of shoe "frames" with removable bootie-like liners made from neoprene laminated on the inside and outside with a man-made textile. Like the footwear in issue, the liners involved therein were visible through the open space located between the eyelet stays. In this case, we found that "[t]he tongues of the shoes, even though their sizes and shapes are unique, are not considered to be either external surface area or accessories or reinforcements." You state that in HRL 953219 "Customs held that the liner material visible in the tongue area, which was of the same piece of material that was also visible through other open spaces in the frames, would not be considered external surface area or accessories or reinforcements." This statement is not accurate inasmuch as we noted therein that "textile will be considered the external surface area of the upper in those areas where it is visible and tactile when the tongue is removed, the areas where it comes up higher than the leather, and all the places where it is visible and tactile through holes in the leather."

It is your position that the result reached NYRL 891314 and HRL 950666 dated November 22, 1991, is inconsistent with Customs published policy on "tongues." In the few cases where Customs has ruled that a section of bootie liner was not to be considered ESAU where it occurred in the opening between the eyelet stays, was because that portion of the bootie that we disregarded as tongue was made from a separate piece of material which was sewn into the bootie in the location where a normal tongue would be, and it had the shape of a normal tongue. See, NYRL 871167 dated February 27, 1992. In HRL 950666, the "tongue" was considered ESAU. The rational for this position is that the "tongue" is not excluded from consideration as ESAU because it and the inner component of the upper are the same piece, and is, therefore, part of the upper.

Inasmuch as we are unable to discern a clear line of demarcation between the "tongue" portion and the rest of the liner, there is no way for us to determine where the "tongue" begins and ends. Consequently, we would not exclude this area from consideration as ESAU.

HOLDING:

That portion of the line which appears in the open space between the eyelet stays or facings of the subject shoes is considered ESAU.

Both shoes are classifiable under subheadings 6402.91.60 through 6402.91.90, HTSUS, and dutiable at a rate depending on value per pair.

NYRL 891314 is affirmed.

Sincerely,

John Durant, Director
Commercial Ruling Division


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