CLA-2 CO:R:C:G 087430 DFC
TARIFF NO: 6403.91.6040
John Pellegrini, Esq.
Ross & Hardies
529 Fifth Avenue
New York, New York 10017-4608
RE: Reconsideration of Headquarters Ruling Letter
(HRL) 081646. Footwear, athletic; Accessories or
Reinforcements; HRL 081646 revoked
Dear Mr. Pellegrini:
In a letter dated June 19, 1990, you requested that we
reconsider the result reached in HRL 081646 dated March 27,
1989, concerning the tariff classification of a basketball
shoe produced in Korea.
FACTS:
The footwear which was the subject of HRL 081646 was
described therein as "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."
In the subject ruling we concluded that a completely
hidden vinyl upper underlay was the material of the upper,
while the leather which completely covered the "plausible"
upper material was merely accessories or reinforcements.
Thus, the footwear having uppers of rubber or plastics
rather than leather was classified under the provision for
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, under
subheading 6402.91.8030, Harmonized Tariff Schedule of the
United States Annotated (HTSUSA), with duty at the rate of
90 cents per pair plus 20 percent ad valorem.
You maintain that leather constitutes the constituent
material having the greatest external surface area of the
uppers involved which requires that the footwear be
classified 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:
Are the toe caps, vamps, quarters and heel counters
which are made of leather considered accessories or
reinforcements for the purposes of Chapter 64, HTSUSA?
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."
Upon reconsideration, it is now our position that a
material which comprises 100 percent of the external
surface area of an upper must be more than mere accessories
and reinforcements, even though it may have underneath it a
plausible upper material. However, it is possible that
there may be types of construction which we would consider
to be exceptions to this rule.
Noting that exceptions may evolve with new designs, we
would agree that on a case by case basis a material in a
shoe upper which is completely covered by other material
should usually not be considered in external surface area
measurements, and that the other material should be
considered to be the material of the external surface.
HOLDING:
It is now our opinion that the external surface area
of the footwear uppers in issue is leather.
Consequently, the footwear is properly classifiable under
subheading 6403.91.6040, HTSUSA, with duty at the rate of
8.5 percent ad valorem.
In accordance with the above determination, HRL 081646
is revoked pursuant to 19 CFR 177.9(d).
Sincerely,
John Durant, Director
Commercial Rulings Division