CLA-2 CO:R:C:M 953219 DFC

William J. Maloney, Esq.
Rode & Qualey
Attorneys at Law
295 Madison Avenue
New York, N.Y. 10017

RE: Footwear, leather, w/removable liners; Liners, neoprene; Sets; Uppers, external surface area; T.D. 84-59; HRL's 084013, 086055, 088043, 952170

Dear Mr. Maloney:

Your letter dated December 14, 1992, addressed to the Area Director of Customs in New York, on behalf of Adidas USA, concerning the tariff classification under the Harmonized Tariff Schedule of the United States (HTSUS) of leather athletic shoes with removable neoprene liners, has been referred to us for a direct reply. You state that the country of origin of these products is not yet determined.

FACTS:

The samples submitted are two men's high-cut athletic shoes referred to as "frames," with molded rubber/plastic soles and uppers of leather, textile, and plastic. Both samples have foxing-like bands. Plastic components of the uppers include molded plastic pieces referred to as "riemens" which are located on either side of the foot and through which the laces are led; and a molded plastic strap located at the back of the foot in the Achilles heel area. The shoe "frame" contains open spaces on the sides and back as well as the tongues of the shoes. Two removable bootie-like liners made from neoprene laminated on the inside and outside with a man-made textile were also submitted. The liners, when inserted into the shoe "frames," are visible where they come up higher than the "frames" and through the open spaces. They appear to form part of the uppers. You state that the liners for these shoes are not designed for or suitable for wear outside of the shoes for which they are intended.

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ISSUE:

1. What is the classification of the shoe "frames" [shoes without liners] and each liner, if imported separately?

2. What is the classification of the complete shoes [shoe "frames" imported with one pair of liners]?

3. What is the classification of shoe "frames" imported with two or more pairs of liners?

4. What constitutes the external surface area of the upper of each shoe?

LAW AND ANALYSIS:

Classification of goods under the HTSUS 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. QUESTION 1

In order to respond to this question it is necessary to refer to GRI 2(a), HTSUS, and Note 4(a) to Chapter 64, HTSUS. GRI 2(a), HTSUS, reads as follows:

Any reference in a heading to an article shall be taken to include a reference to that article incomplete or unfinished, provided that, as entered, the incomplete or unfinished article has the essential character of the complete or finished article. It shall also include a reference to that article complete or finished (or falling to be classified as complete or finished by virtue of this rule), entered unassembled or disassembled.

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Note 4(a), to Chapter 64, HTSUS, reads as follows:

4. Subject to note 3 to this chapter:

(a) 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 tongues of the shoes, even though their sizes and shapes are unique, are not considered to be either external surface area or accessories or reinforcements. See T.D. 84-59. The plastic "riemens" on the sides overlay the leather and are accessories or reinforcements, as are the plastic areas of the sole which overlap the leather "frame." The plastic straps at the Achilles heel area of the back should be considered as external surface area of the uppers because without the liners, they are the only material covering that part of the foot. It is to be noted that Customs has taken the position that the term "accessories or 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. See Headquarters Ruling Letter (HRL) 084013 dated March 26, 1990. This means that the uppers are almost all leather which mandates classification of the shoe "frames" [incomplete or unfinished footwear] following GRI 2(a), HTSUS, under subheading 6403.91.60, HTSUS, 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.

In HRL 086055 dated January 9, 1990, Customs ruled that certain removable neoprene boot liners were classifiable under heading 6117, HTSUS, as other made-up clothing accessories. Classification under Chapter 64, HTSUS, as footwear or as parts of footwear was not appropriate because the boot liners did not possess outer soles and they were presumed not to remain in the boot after the foot was removed. Further, the same rationale was applied in HRL 952170 dated December 23, 1992, to classify certain textile booties under heading 6117, HTSUS, rather than under Chapter 64, HTSUS, as footwear or as parts of footwear. Noting that the instant liners, unlike the liners involved in HRLs 086055 and 952170, are not suitable for use other than with the shoes for which they were intended, it is our position that they are classifiable under subheading 6406.10.9040, HTSUSA, as parts of footwear, uppers and parts thereof, other than stiffeners, other, other, of textile materials other than cotton, of man-made fibers. The textile category number is 669.

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QUESTION 2&4

When a pair of shoe "frames" and a pair of liners are imported together, the external surface area of the uppers of the complete shoes includes all of the textile areas where the textile liner is the only material covering the foot. Further, textile will be considered the external surface area of the upper in those areas where it is visible and tactile when the tongue is removed, the areas where it comes up higher than the leather, and all the places where it is visible and tactile through holes in the leather. With respect to the two samples, a laboratory measurement is necessary to determine whether the external surface areas of their uppers is leather or textile.

If it is determined that the constituent material of the uppers of the shoes involved is leather, the shoes would be classifiable under subheading 6403.91.60, HTSUS, 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.

If it is determined that the constituent material of the uppers of the shoes involved is textile, the shoes would be classifiable under subheading 6404.11.90, HTSUS, as footwear with outer soles of rubber, plastics, leather or composition leather and uppers of textile materials, footwear with outer soles of rubber or plastics, sports footwear, tennis shoes, basketball shoes, gym shoes, training shoes and the like, other, having a foxing or a foxing-like band applied or molded at the sole and overlapping the upper, other, other, valued over $12/pair.

QUESTION 3

GRI 3, HTSUS, is relevant in determining whether a pair of shoe "frames" imported with two or more pairs of liners constitutes a set for tariff purposes. It reads in pertinent part as follows:

3. When by application of rule 2(b) or for any other reason, goods are, prima facie, classifiable under two or more headings, classification shall be effected as follows:

(a) The heading which provides the most specific description shall be preferred to headings providing a more general description. However, when two or more headings each refer to part only of the materials or substances contained in mixed or composite goods . . . those headings are to be regarded as equally specific in relation to those goods, even if one of them gives a more complete

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or precise description of the goods.

(b) Mixtures, composite goods consisting of different materials or made up of different components, and goods put up in sets for retail sale, which cannot be classified by reference to 3(a), shall be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable.

GRI 3(b), HTSUS, is germane here because GRI 3(a), HTSUS, cannot be used in determining classification. The Harmonized Commodity Description and Coding System Explanatory Notes (EN) to the HTSUS, although not dispositive should be looked to for the proper interpretation of the HTSUS. See 54 FR 35128 (August 23, 1989). EN 3(b)(X) at p.4, provides that the term "goods put up in sets for retail sale" mean goods which:

(a) consist of at least two different articles which are, prima facie, classifiable in different headings . . .;

(b) consist of products or articles put up together to meet a particular need or carry out a specific activity; and (c) are put up in a manner suitable for sale directly to users without repacking (e.g., in boxes or cases or on boards).

It is our opinion that a pair of shoe "frames" imported with two or more pairs of liners meet the criteria set forth above for being considered a set for tariff purposes. See HRL 088043 dated December 24, 1990, and HRL 952170 dated December 23, 1992. Since we have concluded that the "frames" and liners constitute a set for tariff purposes, it is necessary to determine which component of the set imparts the essential character thereto. EN 3(b)(VIII), at p. 4, reads as follows:

The factor which determines essential character will vary as between different kinds of goods. It may, for example, be determined by the nature of the material or component, its bulk, quantity, weight or value, or by the role of a constituent material in relation to the use of the goods.

-6- It is our opinion that the essential character of the liners and shoe "frame" set is imparted by the shoe "frame." Although the liner is essential for the practical use of the shoe "frame" {uncomfortable to wear shoe without liner], its function is subordinate to that of the shoe "frame" which provides a walking or running surface which is the primary function of the set.

It is our position that this set is classifiable under subheading 6403.91.60 or 6404.11.90, HTSUS, depending on the constituent material of the uppers of the shoe as stated above.

HOLDING:

Pairs of shoe "frames" imported separately are classifiable under subheading 6403.91.60, HTSUS.

The neoprene liners imported separately are classifiable under subheading 6406.10.9040, HTSUSA.

One pair of shoe "frames" imported together with two or more pairs of liners is classifiable as a set under subheading 6403.91.60, HTSUS, if the constituent material of the upper is leather or under subheading 6404.11.90, HTSUS, if the constituent material of the upper is textile.

The designated textile and apparel category may be subdivided into parts. If so, the visa and quota category requirements applicable to the subject merchandise may be affected. Since part categories are the result of international bilateral agreements which are subject to frequent renegotiations and changes, to obtain the most current information available, we suggest you check, close to the time of shipment, the Status Report on Current Import Quotas (Restraint Levels), an issuance of the U.S. Customs Service, which is updated weekly and is available at your local Customs office.

Due to the changeable nature of the statistical annotation (the ninth and tenth digits of the classification) and the restraint (quota/visa) categories, you should contact your local Customs office prior to the importation of this merchandise to determine the current status of any import restraints or requirements.


Sincerely,


John Durant, Director
Commercial Rulings Division