CLA-2 CO:R:C:M 088348 DFC
William J. Maloney, Esq.
Rode & Qualey
Attorneys at Law
295 Madison Avenue
New York, N.Y. 10017
RE: Footwear, athletic. Upper, external surface area;
Accessories or reinforcements
Dear Mr. Maloney:
In a letter dated November 5, 1990, you inquired as to
the tariff classification under the Harmonized Tariff Schedule
of the United States Annotated (HTSUSA), of two athletic shoes
which your client proposes to manufacture in Korea or other
countries to be determined at a later date. Samples were
submitted for examination.
Exhibit A "Squash" is a man's athletic shoe which does not
cover the wearer's ankle. This shoe has a plastic/rubber molded
bottom that visibly overlaps the upper by at least 1/4 inch
around most of the perimeter of the shoe. The upper has a
textile base with leather overlays that cover over 50 percent of
the external surface. The textile base is exposed at the front
quarter and the sides. The rear third of the textile base is
sandwiched between leather overlays and a padded lining also of
textile material.
Exhibit B "Volleyball" is a man's athletic shoe which
covers the wearer's ankle. The shoe portion which is below the
ankle is the same as "Exhibit A" except for a greater exposure of
the textile base at the front quarter. The textile base ends
just below the ankle and is stitched to a textile collar which
covers the ankle.
- 2 -
It is assumed for the purpose of this reply that the leather
overlays are either not coated with plastic or if any leather
overlay is coated, the coating is less than .15 mm thick and
thus that overlay will still be considered leather.
ISSUE:
Does textile or leather constitute the constituent material
of the upper having the greatest external surface area?
LAW AND ANALYSIS:
In applying the HTSUSA, the Customs Service must follow the
terms of the statute. Classification of goods under the HTSUSA
is governed by the General Rules of Interpretation (GRI's). GRI
1 provides that "classification shall be determined according to
the terms of the headings and any relative section or chapter
notes, and, provided such headings or notes do not otherwise
require, according to [the remaining GRI's taken in order]." In
other words, classification is governed first by the terms of
the headings of the tariff and any relative section or chapter
notes.
Legal Note 4(a) to Chapter 64, HTSUSA, reads as follows:
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.
The Explanatory Notes are the official interpretation of the
Harmonized System at the international level. General
Explanatory Note (D) to Chapter 64 reads 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.
- 3 -
It is your opinion that the "Squash" shoe is classifiable
under subheading 6403.99.60, HTSUSA, as footwear with outer soles
of rubber, plastics, leather or composition leather and uppers
of leather, other, other, for men, youths and boys, with duty at
the rate of 8.5 percent ad valorem. You also maintain that the
"Volleyball" shoe is properly classifiable under subheading
6403.91.60, HTSUSA, as footwear with outer soles of rubber,
plastics, leather or composition leather and uppers of leather,
covering the ankle, other, for men, youths and boys, with duty
at the rate of 8.5 percent ad valorem.
It is your view that the external surfaces of the uppers of
the instant samples are leather. You assert that the leather
overlays "cannot be disregarded as 'accessories or
reinforcements' because this leather is essential for purposes of
making an upper that is suitable for athletic footwear, and
because the textile mesh underlying fabric, which is visible on
some parts of the upper and which also acts as a lining material,
would not, standing alone, form a plausible upper for this
footwear."
You cite Headquarters Ruling Letter (HRL) 084013 dated
March 26, 1990, for the proposition that "the term 'accessories
or reinforcements' includes any additional material added to an
otherwise completed upper to the extent that the underlying
material after removal of overlying layers would form a plausible
upper for the specific footwear in question." It should be
noted that this ruling also states that "[i]n 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."
Further, in HRL 087430 dated October 22, 1990, Customs took the
position that a layer which comprises all of the external surface
of the upper is in fact the external surface of the upper even
if there is a plausible upper material underneath.
It appears to us that the standard is clear. In a shoe
which has an upper comprised of several layers of material, the
top layer will be considered the external surface of the upper
when that layer covers the whole surface of the upper. However,
in the instant case, the textile base is a visible component of
the surface area of both shoes, which makes it clear that your
claim that the shoe uppers are leather fails this standard.
- 4 -
We disagree with your contention that the textile base is a
lining and not a plausible upper by itself. In the rear third of
both shoes, the textile base is sandwiched between overlays of
leather and a padded textile lining. In those sections of the
shoes where the textile padded lining is not present, the
textile base is visible as the surface area of the upper. It is
our opinion that the textile base is not a mere lining for the
leather overlays. Lastly, the textile base is a plausible upper
because the importer uses it as such at various places where it
shows on the shoe upper. It is our opinion that the leather
overlays are present as reinforcements to insure the shoes'
durability and support of the wearer's foot.
HOLDING:
Both shoes are classifiable under subheading 6404.11.20,
HTSUSA, as footwear with outer soles of rubber, plastics,
leather or composition leather and uppers of textile material,
footwear with outer soles of rubber or plastics, tennis shoes,
basketball shoes, gym shoes, training shoes and the like, having
uppers of which over 50 percent of the external surface area
(including any leather accessories or reinforcements such as
those mentioned in note 4(a) to this chapter) is leather. The
applicable rate of duty for this provision is 10.5 percent ad
valorem. Your samples are being returned under separate cover.
Sincerely,
John Durant, Director
Commercial Rulings Division
6cc AD NY Seaport
1cc Legal Reference
1cc James Sheridan NY Seaport
cahill library/peh wp
088348