CLA-2 CO:R:C:M 956398 DFC
6404.11.90;
District Director of Customs
P.O. Box 37260
6269 Ace Industrial Dr, Cudahy WI.
Milwaukee, WI 53237-0260
RE: Protest 3701-94-100024; Footwear, sports; Upper, external
surface area; Accessories or reinforcements; HQ
084013,085381,953556
Dear District Director:
This is in response to Protest 3701-94-100024 covering a
shipment of athletic footwear [baseball shoes] produced in
Taiwan. Samples were submitted for examination.
FACTS:
The five sample baseball shoes submitted have full mesh
uppers with plastic or leather overlays stitched on top of them.
Protestant entered styles 7001, 7501, 5006, 6006 and 9230
under subheading 6402.19.10, Harmonized Tariff Schedule of the
United States (HTSUS), which provides for sports footwear with
outer soles and uppers of rubber or plastics and having uppers of
which over 90 percent of the external surface area (including any
accessories or reinforcements such as those mentioned in note
4(a) to this chapter) is rubber or plastics.
Style 7001 was classified under subheading 6402.19.70,
HTSUS, which provides for sports footwear with outer soles and
uppers of rubber or plastics and having a foxing-like band
applied or molded at the sole and overlapping the upper, other,
valued over $6.50 but not over $12/pair.
Style 7501 was classified under subheading 6404.11.80,
HTSUS, which provides for sports footwear with outer soles of
rubber, plastics, leather or composition leather and uppers of
textile materials, other, valued over $6.50 but not over
$12/pair.
Styles 5006 and 6006 were classified under subheading
6404.11.20, HTSUS, which provides for sports footwear with outer
soles of rubber, plastics, leather or composition leather and
uppers of textile material, 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.
Style 9230 was classified under subheading 6404.11.90,
HTSUS, which provides for sports footwear with outer soles of
rubber, plastics, leather or composition leather and uppers of
textile materials, other, valued over $12/pair.
The entry covering the above-listed styles was liquidated on
February 18, 1984. The protest was timely filed on April 12,
1994.
ISSUE:
What is the constituent material which comprises the
greatest external surface area of the footwear uppers (ESAU)?
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]." In other words, classification is
governed first by the terms of the headings of the tariff and any
relative section or chapter notes.
The competing provisions read, as follows:
6402 Other footwear with outer soles and uppers of rubber or
plastics:
Sports footwear:
* * *
6402.19 Other:
6402.19.10 Having uppers of which over 90 percent
of the external surface area (including
any accessories or reinforcements such
as those mentioned in note 4(a) to this
chapter) is rubber or plastics (except
footwear having foxing or a foxing-like
band applied or molded at the sole and
overlapping the upper and except
footwear designed to be worn over, or in
lieu of other footwear as a protection
against water, oil, grease or chemicals
or cold or inclement weather). . . . .
* * *
Other:
* * *
6402.19.70 Valued over $6.50 but not over
$12/pair
* * *
6404 Footwear with outer soles of rubber, plastics, leather
or composition leather and uppers of textile materials:
Footwear with outer soles of rubber or plastics:
6404.11 Sports footwear; tennis shoes, basketball
shoes, gym shoes, training shoes and the
like:
6404.11.20 Having uppers of which over 50 percent
of the external surface area (including
any leather accessories or reinforce-
ments such as those mentioned in note
4(a) to this chapter is leather. . . . .
* * *
Other:
Valued over $3 but not over
$6.50/pair:
6404.11.70 Other. . . . . . .
6404.11.80 Valued over $6.50 but not over
$12/pair. . . . . . .
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 Harmonized Commodity Description and Coding System
explanatory Notes to the HTSUS (EN), although not dispositive,
should be looked to for the proper interpretation of the HTSUS.
See T.D. 89-80, 54 FR 35127, 25128 (August 23, 1989). General EN
(D) to chapter 64, HTSUS, which is relevant here, reads, in
pertinent part as follows:
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.
In Headquarters Ruling Letter (HRL) 953556 dated April 9,
1993, Customs took 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, if not
the best material." See HRL 084013 dated March 26, 1990.
It is our opinion that the mesh textile underlying the
plastic or leather overlays is a plausible upper material and
should be included in determining the constituent material of the
uppers. A laboratory analysis of the styles involved revealed
that after the accessories and reinforcements were removed, the
uppers were almost entirely of textile material [mesh]. Thus,
after note 4(a) to chapter 64, HTSUS, supra, is applied, the
uppers of the subject styles are almost entirely textile material
which mandates their classification under heading 6404, HTSUS.
Protestant cites HRL 085381 dated November 21, 1989,
concerning the tariff classification of a glass beaded shoe as
authority for his position that the uppers of the footwear styles
in issue should be considered plastic rather than textile. The
woman's shoe involved in HRL 085381 had an upper the external
surface area of which was almost entirely of glass beads except
for small gaps between the beads where portions of the underlying
fabric were visible. Although the underlying textile was a
plausible upper material, Customs ruled that the beaded shoe was
more accurately described as having a glass upper instead of a
textile upper. The rationale for this position was that the
beads were more than a mere accessory or reinforcement because
they were so extensive and clearly constituted a significant
portion of the ESAU of the shoe. Further, because of the expense
and work involved in attaching the glass beads to the upper, the
beads were considered to constitute more than an ankle patch,
edging, ornamentation or buckle.
Protestant would apply the same rationale used to justify
the result reached in HRL 085381 to the subject samples. HRL
085381 has no application here because the ESAU of the beaded
shoe was covered almost entirely with glass beads and with very
little textile material showing. In the instant case substantial
amounts of textile material [mesh] are visible on the surface.
Classification of style 7001 under subheading 6402.19.70,
HTSUS, with duty at the rate of 90 cents per pair plus 20% ad
valorem was incorrect. It is properly classifiable under
subheading 6404.11.80, HTSUS, with duty at the rate of 90 cents
per pair plus 20% ad valorem.
HOLDING:
The constituent material which comprises the greatest
external surface area of the footwear uppers is textile material.
Styles 7001 and 7501 are dutiable at the rate of 90 cents
per pair plus 20% ad valorem under subheading 6404.11.80, HTSUS.
Styles 5006 and 6006 are dutiable at the rate of 10.5% ad
valorem under subheading 6404.11.20, HTSUS.
Style 9230 is dutiable at the rate of 20% ad valorem under
subheading 6404.11.90, HTSUS.
The protest should be denied. In accordance with Section
3A(11)(b) of Customs Directive 099 3550-065, dated August 4,
1993, Subject: Revised Protest Directive, this decision together
with the Customs Form 19, should be mailed by your office to the
protestant no later than 60 days from the date of this letter.
Any reliquidation of the entry in accordance with the decision
must be accomplished prior to mailing of the decision. Sixty
days from the date of the decision the Office of Regulations and
Rulings will take steps to make the decision available to Customs
personnel via the Customs Rulings Module in ACS and the public
via the Diskette Subscription Service, Freedom of Information Act
and other public access channels.
Sincerely,
John Durant, Director
Commercial Rulings Division