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HQ 964383




August 28, 2002

CLA-2 RR:TC:TE 964383 STB

CATEGORY: CLASSIFICATION

TARIFF NO.: 6404.19.9090

William J. Maloney, Esquire
Rode & Qualey
295 Madison Avenue
New York, N.Y. 10017

RE: Classification of Footwear with Uppers of Textile Material Surface and Leather Backing (“Texus Leather”); NY D84750 and NY D84622

Dear Mr. Maloney:

This is in response to your letter, dated June 30, 2000 on behalf of your client, Deckers Outdoor Corporation, requesting a prospective classification of Deckers’ “Cobra shoe” under the Harmonized Tariff Schedule of the United States, Annotated (HTSUSA). A sample was provided with your request .

FACTS:

You state that Deckers’ style “Cobra” is an athletic shoe featuring an athletic style rubber outsole. You describe the upper as being comprised of textile, plastic and a leather material and further that the leather material is a composite material consisting in chief part of split leather with a thin polyester/polyurethane laminate foil (in addition to a sample shoe, a sample cut piece of this material is also provided.) On the sample piece, the claimed leather section has been marked with the words “Bovine Split.” The leather part of the sample is thicker than the section covering it; you claim that the overall thickness of the “laminated leather” is between 1.6 and 1.8 millimeters with the split leather accounting for between 1.3 and 1.5 millimeters of that thickness.

It is your contention that the subject shoe is properly classifiable under subheading 6403.99.60, HTSUSA, the provision for other footwear for men, youths and boys, not covering the ankle, with outer soles of rubber or plastics and uppers of leather. You argue that classification in this tariff provision is required if the material which accounts for the greater part of the exterior

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surface area of the upper (according to your submission, this is the leather/textile combination), is considered leather for footwear classification purposes.

ISSUE:

What is the classification, pursuant to the Harmonized Tariff Schedule of the United States, Annotated, of the subject “Cobra shoe?”

ANALYSIS:

The General Rules of Interpretation (GRI) set forth the manner in which merchandise is to be classified under the HTSUSA. GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative Section or Chapter Notes. In the event that goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRI may then be applied. The Explanatory Notes (EN) to the Harmonized Commodity Description and Coding System, which represent the official interpretation of the tariff at the international level, facilitate classification under the HTSUSA by offering guidance in understanding the scope of the headings and GRI.

HTSUSA Chapter 64 covers footwear and footwear parts. The relevant chapter notes to Chapter 64 provide as follows:

For the purposes of this chapter:
the terms “rubber” and “plastics” include woven fabrics or other textile products with an external layer of rubber or plastics being visible to the naked eye; for the purpose of this provision, no account should be taken of any resulting change of color; and

(b) the term “leather” refers to the goods of headings 4107 and 4112 to 4114.

At the time of the ruling request, Chapter Note 3(b) stated as follows:

(b) the term “leather” refers to goods of headings 4104 to 4109 [the former headings for
leather imports].

Subject to Note 3 of this chapter:

The material of the upper shall be taken to be the constituent material having the greatest external surface area, no account

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being taken of accessories or reinforcements such as ankle patches, edging, ornamentation, buckles, tabs, eyelet stays or similar attachments;

In addition to requesting that the “Cobra” style shoe be classified in the provision for certain footwear with uppers of leather, your letter makes reference to two previously issued New York rulings, whose determinations would indicate a classification of the subject shoe contrary to that claimed in your ruling request.

In New York Ruling Letter (NY) D84750, dated February 23, 1999 Customs considered the tariff classification of “texus leather,” described as “a bovine split leather laminated on the upper surface with textile material [similar to the upper material of Deckers’ shoe] for use as shoe components, from Korea.” The ruling applicant argued that the “thicker and heavier” leather imparted the essential character of the material (under General Rule of Interpretation (GRI) 3(b)) and that, therefore, “the goods are classifiable under subheading 4104.39.8000 as other bovine leather, fancy.” In that ruling Customs did not agree and ruled as follows:

Since we have a covered or laminated textile material, we consider all of these styles to fall under heading 5907, “Textile fabrics otherwisecovered;” following GRI 1. The applicable subheading for these goods will be 5907.00.1500, Harmonized Tariff Schedule of the United States (HTS), which provides for Laminated fabrics; of man-made fibers; other.

In making this determination, Customs noted that:

The different textile components completely cover one surface of the leather. Oval shapes are cut from the various styles and are incorporated, as inserts, on both sides of shoe uppers, adding a decorative textile touch to the shoes. The leather portion is not visible in the finished shoe.

In NY D84622, dated February 26, 1999 Customs declined to classify certain footwear as having uppers of “all leather” as requested by the ruling applicant. Customs decision was based on the fact that the uppers included oval inserts that were identified by the applicant as being made of “texus leather,” described as “split leather to which a polyester fabric with a polyurethane film backing has been laminated.” The applicant argued that since texus leather is a combination of leather, plastic and fabric, it would be

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necessary to determine the material which imparts the essential character of the item pursuant to GRI 3(b).

Customs again disagreed with that argument and noted that:

The portion of the footwear sample submitted with this ruling request which is comprised of “texus leather” has textile material on the external surface which completely obscures the underlying leather. In situations where more than one layer of material comprise the upper of a shoe, the material which comprises the outermost layer will generally be considered “external surface.” In addition, the leather backing of “Texus leather” [sic] is not visible on the surface of the shoe.

Due to these properties of the submitted footwear, Customs stated that it was not necessary to perform an analysis under GRI 3(b), asserting that:

We disagree with your implication that footwear or footwear parts made of “texus leather” should be classified as leather under GRI 3 if the layer of material exposed to the external surface of the footwear upper is textile and not leatherWhile the essential character of the material itself, if imported as is, may or may not be imparted by the leather, the material of “texus leather” which comprises the external surface for purposes of footwear classification is textile. Footwear and footwear parts manufactured with external surface areas of “texus leather” with the textile layer on the outside will be classified as textile.

You argue that these rulings are incorrect. Particularly with regard to the language of NY D84622, above, you state that:

It is not clear from this language whether the position of the Customs Service was that even if the “texus leather” was a good of heading 4104 to 4109 [leather], to the extent that the textile component was on the outer surface, it would be treated as textile for purposes of footwear classification. If this was the position in the ruling, it was clearly wrong and contrary to the statutory definition of leather for purposes of classification in Chapter 64.

You cite several rulings in support of your position, including Headquarters Ruling Letter (HQ) 955400, dated February 7, 1995.

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It is our determination, now, that the material submitted with your ruling request is not a (leather) good of the former headings 4104 through 4109 or the new headings of 4107 and 4112 to 4114. The material has been examined by Customs Import Specialists who have determined that, due to the construction and appearance of the material, it does not belong in those chapters. Further, we note that we are not dealing with a clear plastic coating or covering of the subject leather, but rather a textile material which completely hides the leather and provides the subject footwear upper with the feel and consistency of the textile.

In HQ 051937, dated June 6, 1977, the term “exterior surface area of the upper” (ESAU) was defined under the TSUS as “whatever is visible and tactile on the surface.” On November 17, 1993, in Treasury Decision (T.D.) 93-88 (27 Cust. Bull & Dec. No. 46), Customs published certain footwear definitions used by Customs import specialists in classifying footwear under Chapter 64, HTSUS. Inasmuch as these definitions were provided merely as guidelines and are not to be construed as Customs rulings, they are not dispositive. However, it is useful to consult them. On page 3 of that document, the term “External Surface” was defined, in pertinent part, as follows:

The “external surface” of the upper is, in general, the outside surface of what you see covering the foot (and leg, if applicable) when the shoe is worn (emphasis added)

In HQ 955400 we noted that the definition of “external surface” area of the upper set forth under T.D. 93-88 is essentially the same as the definition set forth in HQ 051937. We also stated that:

In principle, shoe classification is based on the measurements of ESAU, in other words, of that material which is on the surface. In practice, however, such determinations are not so simple. For example, if a shoe has a plastic coating over a textile material, regardless of how thin the coating, if that coating is “visible,” note 3 to chapter 64, HTSUS, provides that the ESAU is plastic, even though the outside of the upper looks like it is made from textile. On the other hand, the same thin plastic coating on a leather upper, or a plastic coating which is much thicker, even to the point of being almost as thick as the leather it coats, does not prevent the ESAU from being considered leather for tariff purposes.

We recognize your arguments that, in most cases, a plastic coating to leather, supplementing the waterproof and other characteristics of the leather, will not necessarily change the ESAU from leather to plastic (although the constituent

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material may, in some instances, constitute “patent leather” or “patent laminated leather” in subheading 4114.20, HTSUSA). However, in this instance, the upper of the subject footwear is covered by textile which is not clear and which completely conceals the leather, providing a textile look and feel to the upper. Therefore, based on the common definitions of “external surface,” provided above and Chapter Note 4, we find that the greatest ESAU is textile material without resort to GRI 3(b). In response to your argument that one must first, in accordance with Chapter Note 3, determine that the material of the uppers is not a leather material classifiable in the headings of Chapter 41, we note that in light of the findings described in NY D84750 above, the construction of the material, and the fact that the textile conceals the leather (giving the appearance and feel of textile) the material at issue here is not a good of Chapter 41.

HOLDING:

The subject “Deckers Corp. Cobra Shoe” is classified in subheading 6404.19.9090, HTSUSA, which essentially provides for footwear with outer soles of rubber or plastics and uppers of textile materials. The general column one rate of duty is 9 percent ad valorem.

Sincerely,

Myles B. Harmon, Acting Director

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