CLA-2 CO:R:C:G 084013 NLP

Ms. Karen Faus
16160 S.W. Upper Boones Ferry Road
Portland, Oregon 97224

RE: Athletic footwear

Dear Ms. Faus:

This is in response to your inquiry of April 18, 1988, requesting a tariff classification of Avia athletic footwear under the Harmonized Tariff Schedule of the United States (HTSUS). Samples were submitted for our examination.


The footwear at issue is Avia models 880M Team and 880M In- line. Each shoe consists of: a leather toe cap, a leather vamp, leather quarters, a hard plastic heel stabilizer, a vinyl tongue, a vinyl underlay basted to the vamp which extends to the heel, molded 2 inch by 3 inch "AVIA" side piece/eyelet stay reinforcements, molded 9 inch by 2 inch collar reinforcements, a 1 inch by 1-1/2 eyelet stay plug, molded 7 inch by 1 inch straps with velcro-like fasteners inside, and two vinyl panels on each side which are totally hidden by other components. In addition, both models have textile padded collars which cover the ankle. The only difference between the two models is that the 880M In- line has split leather in the upper portion of the padded collar and in the extra toe piece, while the 880M Team has a grain leather in those places.


What is the external surface of the uppers of models 880M Team and 880M In-line for HTSUS tariff classification purposes?



Classification of merchandise under the HTSUS is in accordance with the General Rules of Interpretation (GRI's), taken in order. GRI 1 provides that classification is determined in accordance with the terms of the headings and any relevant Section or Chapter notes.

Note 4(a) to Chapter 64, HTSUS, states that:

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.

Furthermore, General Explanatory Note (D) to Chapter 64 states, in pertinent part:

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.

It is Customs position that the term "accessories and reinforcements," although not fully defined, includes any additional material added to an otherwise completed upper material. Moreover, when determining the external surface of a shoe for tariff purposes, pieces of material that are attached to a shoe may only be excluded or included as a whole. In no instance may only part of an item be excluded or included from the upper. Since the subject footwear is composed of various layers of materials, the issue to be addressed is which materials should be considered in determining the composition of the external surface area of the upper of the footwear.

In determining what the external surfaces of the uppers of the Avia models are, we first exclude the separate stitched on, textile tongue and shoelaces, pursuant to HRL 081305, dated March 10, 1988. We would also exclude the 1/2 inch high sidewall of the rubber cupsole as it is clearly a reinforcement.


In addition, we have excluded the grey plastic wishbone around the lower part of the padded collar. The removal of this piece only exposes additional areas of the padded collar. We have also excluded the blue textile "edging" located on the leather vamp. It is not a traditional edging since it is between two pieces of leather and is not at the edge of the upper. However, the edging is clearly an ornamental strip, as defined in Explanatory Note (D) to Chapter 64, and is, therefore, not taken into account in deciding the external surface area of the upper. Finally, the plastic/velcro ankle strap is excluded because it is also a reinforcement.

In determining the constituent material of the footwear's uppers, certain parts of the uppers have not been excluded. The plastic outside counter around the back of the heel has not been excluded. Even though the outside counter functions primarily as an auxiliary stiffener, when removed it exposes a cardboard counter (impregnated with plastic) which lies on top of the non- woven fabric lining layer. The lining layer, if left, would not form a plausible upper for the footwear in question.

Moreover, the grey and blue plastic eyelet anchor/decoration with the "Avia" lettering is not excluded from the external surface of the instant footwear's uppers. Like many of the accessories and reinforcements noted in Note 4(a) to Chapter 64, the above piece embellishes or strengthens the surface to which it is being added. However, unlike the named accessories and reinforcements in Note 4(a) to Chapter 64, the above piece hides the underlying surface to the point that the consumer is unaware that the original surface exists. In the instant case, vinyl portions are hidden by the grey and blue plastic eyelet/anchor decoration. In our view, a piece of material which does not constitute a visible part of the external surface of the upper of the finished shoe should not be considered part of the external surface area of the upper. Therefore, the vinyl quarters should not be considered part of the external surface of the uppers, while the above piece, which covers the vinyl quarters, should be counted as part of the external surface area of the uppers.

Based on the foregoing analysis, after removing the textile tongue and shoelaces, the grey plastic wishbone, the thin blue textile edging on the vamp, and the plastic/velcro ankle strap, it is apparent that the leather comprises the greatest external


surface area of the shoe, rather than either the textile materials, the rubber or the plastics. Thus, the instant footwear is properly classifiable under Heading 6403, HTSUS.


The Avia 880M Team and 880M In-line footwear are classifiable in subheading 6403.91.6040, HTSUS, which provides for athletic footwear, in which the upper's external surface is predominately leather; in which the outer soles's external surface is predominately rubber or plastics; which is other than "sports" footwear; which lacks a protective metal toe-cap; in which the top of the upper covers the wearer's ankle bone; whose sole is attached to the upper by a means other than welt stitched construction; and which is larger than adults' American size 5-1/2 and worn only by males. The rate of duty is 8.5% ad valorem.


John Durant, Director
Commercial Rulings Division