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NY M83973




June 14, 2006

CLA-2:64:RR:NC:TA:247 M83973

CATEGORY: CLASSIFICATION

TARIFF NO.: 6404.11.80

Ms. Susan Morelli
Converse
One High Street
North Andover, MA 01845

RE: The tariff classification of footwear from China.

Dear Ms. Morelli:

In your letter dated May 31, 2006 you requested a tariff classification ruling. You have submitted a sample that is a variation of a traditional high-top sneaker, identified as “Chuck Taylor All Star Double Upper.” The shoe covers the ankle and has a rubber/plastic athletic outer sole, a foxing or foxing-like band, a rubber toe bumper and a lace tie closure system. The shoe features two uppers, a complete inner textile upper and an additional outer textile upper, in a different color, that covers most of the inner upper. The inner upper is lasted under and cemented to filler material under the mid-sole. The outer upper is permanently attached by vulcanization to the foxing band. Both uppers have metal eyelets to accommodate laces and feature the “Converse Chuck Taylor All Star” logo printed on the medial side of the quarter. You believe that the inner upper should be the determining factor when deciding the external surface area for tariff classification purposes.

Note 3(a), Chapter 64, Harmonized Tariff Schedule of the United States (HTSUS), provides for purposes of this chapter: 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.

In HRL 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.

Both the outer upper and the visible portion of the inner upper are tactile and visible on the external surface of the shoe when it is worn. The outer upper on “Chuck Taylor All Star Double Upper” is not like the examples of accessories or reinforcements mentioned in Note 3(a). In this regard, the visible portions of both the inner and outer uppers are included in external surface area measurements.

Both the inner and outer uppers are lined with woven textile material in coordinated colors. You state that the outer upper is “designed to be rolled down” thereby exposing the lining material to the external surface. T.D. 93-88 also provides, in pertinent part, that the external surface includes the top part of the lining of boots if the boot is likely to be worn sometimes with the top of the shaft folded or rolled down, thus exposing that part of the lining to view, as a “cuff.” Many factors are considered in determining whether or not footwear is designed to be worn in a cuffed position. The fact that the outer upper on this shoe does not lie flat, when folded over, leads us to believe that this particular style is not designed to be worn in a folded or cuffed position.

You further state that an additional color coordinated pair of laces will be imported with the shoe. HRL 086029 dated February 15, 1990, provides guidance in situations where more than one pair of laces is included with imported footwear. It provides, in pertinent part, that where multiple pairs of laces are imported with one pair of athletic-type shoes which can accommodate, through styling and use of eyelets, all of the pairs of laces simultaneously, and those pairs of laces are of differing colors and/or designs, absent evidence that the laces are intended to be used separately, a presumption is raised that the multiple pairs of laces are intended to be worn simultaneously. The one pair of shoes plus all pairs of laces is therefore considered a single article.

The applicable subheading for “Chuck Taylor All Star Double Upper” will be 6404.11.80, HTSUS, which provides for footwear with outer soles of rubber or plastics and uppers of textile material, tennis shoes, basketball shoes, gym shoes, training shoes and the like, other, valued over $6.50 but not over $12/pair. The general rate of duty will be 90 cents/pair plus 20 percent ad valorem.

We note that the submitted sample is not marked with the country of origin. Therefore, if imported as is, it will not meet the country of origin marking requirements of 19 U.S.C. 1304. Accordingly, the footwear would be considered not legally marked under the provisions of 19 C.F.R. 134.11 which states, "every article of foreign origin (or its container) imported into the U.S. shall be marked in a conspicuous place as legibly, indelibly, and permanently as the nature of the article (or container) will permit, in such manner as to indicate to the ultimate purchaser in the U.S. the English name of the country of origin of the article."

This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 C.F.R. 177).

A copy of the ruling or the control number indicated above should be provided with the entry documents filed at the time this merchandise is imported. If you have any questions regarding the ruling, contact National Import Specialist, Richard Foley at 646-733-3042.

Sincerely,

Robert B. Swierupski
Director,

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