CLA-2 CO:R:C:G 081646 c
John Pellegrini, Esq.
Ross & Hardies
529 Fifth Avenue
New York, New York 10017-4608
RE: Footwear; basketball shoe
Dear Mr. Pellegrini:
In a letter dated January 20, 1988, you inquired as to the
tariff classification under the Harmonized Tariff Schedule of
the United States (HTSUSA), of certain footwear produced in
Korea.
FACTS:
The footwear involved is a man's high-top basketball shoe
having a rubber shell molded bottom. The upper portion
consists of: a leather toe cap; leather vamp, quarters, and
heel counter (with vinyl and textile inserts) stitched to the
toe cap and lasted; a hard plastic heel stabilizer between a
vinyl underlay and the leather heel counter; a padded vinyl
collar; a vinyl tongue; a vinyl underlay basted to the vamp and
which extends to the heel; and, a fabric lining with foam
rubber padding. The leather toe-cap, vamp, quarter and heel
counter and the vinyl underlay are assembled prior to lasting.
The leather components have a lasting allowance while the vinyl
underlay has only a partial lasting allowance.
You maintain that the instant footwear is classifiable
under subheading 6403.91.6040, HTSUSA, as footwear with outer
soles of rubber, plastics, leather or composition leather and
uppers of leather, other, footwear, covering the ankle, other,
for men, youths and boys, other, basketball shoes, for men,
other with duty at the rate of 8.5 percent ad valorem.
ISSUE:
What is the identity of the constituent material of the
upper?
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LAW AND ANALYSIS:
Note 4(a) to Chapter 64, HTSUSA), 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".
General Explanatory Note (D) to Chapter 64 states in
pertinent part that "(i)f 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."
If the leather vamp, quarters and heel counter are
accessories or reinforcements and the vinyl underlay is
considered the external surface area, the constituent material
of the upper would be plastic. However, if the leather vamp,
quarters and heel counter are neither accessories nor
reinforcements, they, along with the leather toe-cap, would
make up the constituent material of the upper.
You assert that the common characteristic of the examples
in Chapter Note 4(a) is that they are added to an otherwise
complete upper in the sense that in the absence of the
"accessories or reinforcements" it would still function to
protect and support the foot. You claim that on the submitted
sample that the vinyl "underlay" could not function in this
manner and in use the support would tear away from the toe-cap.
Furthermore, you state that the joining of the vamp to the
leather toe cap secures the integrity of the upper at this
stress point and that in the absence of the leather heel
counter the stabilizer would provide little support to the
wearer.
You point out that removal of the vinyl underlay would not
leave an incomplete upper. Without the underlay the upper
would function and neither it nor the shoe would break apart.
Thus, it is clear that the vinyl underlay should be disregarded
as an accessory or reinforcement. For this reason and the
reasons previously stated the constituent material of the upper
is leather which mandates classification of the footwear under
subheading 6403.91.6040, HTSUSA.
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We agree that the sample's upper will survive much more
stress because of the presence of the referenced pieces.
However, this is precisely the function of a "reinforcement."
As to this upper, there are so many layers of material that
some pieces could be considered as reinforcing reinforcements,
but they would still be "reinforcements."
It is our position that the term "accessories and
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,
even if not the best material. For example, vinyl is a
plausible upper material in any athletic shoe, but foam/tricot
is normally a lining material and is not a plausible upper
material. On the submitted sample, the white leather outside
counter, side pieces, upper eyelet stay/anchor, and toe bumper;
the purple leather lower eyelet stay/anchor/side piece; the
purple and gold plastic side flashes and counter (under the
leather outside counter); and the rubber sidewalls of the
cupsole are all added to a completed upper and are accessories
or reinforcements. Therefore, we consider vinyl to be the
material with the greatest external surface because the plastic
quarters and collar clearly are larger than the leather toe
piece.
The tongue and laces are excluded from computation as part
of the external surface area of the upper following
Headquarters Ruling Letter 081305 dated March 10, 1988.
With your supplemental letter dated October 11, 1988, you
submitted a copy of a letter dated October 4, 1988, from Her
Majesty's Customs and Excise holding that a shoe which you
claim is identical in construction to the shoe in issue is
classifiable under subheading 6403.91.15 covering footwear with
leather uppers. It is your belief that this letter confirms
your view as to the proper tariff classification of the
footwear.
While the above-cited letter is useful in assisting us to
arrive at a determination in this matter, we are not bound by
an administrative decision of another government.
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HOLDING:
The sample basketball shoe is classifiable under
subheading 6402.91.8030, HTSUSA, as other footwear with outer
soles and uppers of rubber or plastics, other footwear,
covering the ankle, other, other, valued over $6.50 but not
over $12/pair, for men with duty at the rate of 90 cents per
pair plus 20 percent ad valorem.
Sincerely,
John Durant, Director
Commercial Rulings Division