HQ 956952
October 3 1994
CLA-2 CO:R:C:M 956410 DFC
William J. Maloney, Esq.
Rode & Qualey
Attorneys at Law
295 Madison Avenue
New York, N.Y. 10017
RE: Footwear, athletic; Uppers, external surface area;
Accessories or reinforcements; Plausible upper material;
HRL's 953556, 084013, 950202
Dear Mr. Maloney:
Your letter dated July 26, 1994, addressed to the Area
Director of Customs in New York, on behalf of Pagoda Trading Co.,
concerning the tariff classification of a men's athletic shoe
under the Harmonized Tariff Schedule of the United States
(HTSUS), has been referred to this office for a response. A
sample was submitted for examination.
FACTS:
The sample, identified as pattern number S88192M, will be
manufactured in Taiwan or other countries to be determined. It
has a rubber sole and an upper of plastic and leather. Certain
component pieces of the upper serve a dual purpose as accessories
or reinforcements (A/R), and as external surface area of the
upper (ESAU) where they cover portions of exposed lining
material. If these pieces are considered A/R, and, therefore
excluded as ESAU, classification of the shoe under heading 6402,
HTSUS, would be appropriate. However, if these pieces are not
considered A/R, and, therefore included as ESAU, classification
of the shoe under heading 6403, HTSUS, would be proper.
The materials comprising the ESAU of the upper have been
labeled A through H with the material comprising each component
indicated as follows:
Leather toe cap labelled component A. Leather vamp
labelled component B. Leather strips labelled
components C, and C-1. Plastic quarter panels labelled
components D, and D-1. Leather strips and eyelet stays
labelled components E, and E-1. Plastic rear panels
labelled components F, F-1, G, and G1. Leather U-
throat labelled as component H.
The removal of the leather side pieces labelled C, C-1, E and E-
1 expose sections of lining and inner lining materials which are
not otherwise exposed to view on the ESAU.
We agree that components labelled A, B, D, F and G should be
included in the ESAU measurement. Further, it is our view that
the 1/8 inch textile strip visible above the top line of the shoe
and the leather U-throat (component H) should be included as
ESAU.
You state that based on your client's measurement of the
ESAU, the shoe is comprised of 63% leather and 37% plastic. This
result was reached by including the area of all exposed surfaces
of leather components A, B, C, C-1, E, E-1, H and the area of
that portion of leather component A covered by the plastic toe
bumper. The plastic area of the upper was arrived at by including
the exposed surface area of components D, D-1, F and G. Those
portions of plastic components D, D-1 and F which are covered by
leather components C, C-1, E and E-1 were not included as ESAU.
This measurement did not include any portion of the textile
liner.
It is your position that pattern number S88192M is
classifiable under subheading 6403.99.60, HTSUS, which provides
for footwear with outer soles of rubber, plastics, leather or
composition leather and uppers of leather, other footwear, other,
other, other, for men, youths and boys. The applicable rate of
duty for this provision is 8.5% ad valorem.
ISSUES:
Should leather components C, C-1, E, and E-1 of the shoe be
included in an ESAU measurement because they cover exposed lining
material?
Should leather components C, C-1, E, and E-1 of the shoe be
considered as accessories or reinforcements and thus excluded
from measurement of the 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.
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 (EN) to the HTSUS, although not dispositive
should to looked to for the proper interpretation of the HTSUS.
See T.D. 89-80, 54 FR 35127, 35128 (August 23, 1989). General EN
(D) to chapter 64, HTSUS, provides in pertinent part on page 875,
as follows:
(D) 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, pom poms
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 complete upper as long
as the underlying material is a plausible upper material, if not
the best material."
In HRL 084013 dated March 28, 1990, Customs stated that
"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."
Noting the above cited rulings, you maintain that leather
components C, C-1, E and E-1 of the upper of the subject shoe
cannot be considered accessories or reinforcements because they
cover lining material which is not plausible upper material.
(Emphasis added.) Further, because these leather components are
not excludable as accessories or reinforcements their surface
area must be included as whole.
For the reasons stated above, you submit that leather
components C, C-1, E and E-1 should be included in the
measurement of the ESAU of the subject shoe. Accordingly, after
the inclusion of these leather components the shoe has an upper
predominantly of leather material and the shoe is properly
classifiable under subheading 6403.99.60, HTSUS.
It is our view that components C, C-1, E and E-1 should be
considered essentially accessories or reinforcements (A/R) rather
than as ESAU of the subject shoe. Components E and E-1 cover a
far greater area of plastic upper material than the intentionally
exposed textile lining material. In addition, these pieces of
material function as eyelet stays, a recognized example of A/R.
Components C and C-1 serve as reinforcement of seams and cover a
greater area of plastic upper material than textile lining
material. In this situation, the exposed textile portions are
not of such significance as to outweigh the role of components C,
C-1, E and E-1 as A/R. See e.g., HRL 950202 dated April 27,
1992, wherein a leather toe piece (mudguard) was considered A/R
because over 80% of its surface covered a red fabric [plausible
upper material] and only a small portion of material which was
not a plausible upper material.
HOLDING:
Leather components C, C-1, E and E-1 should be considered
A/R and excluded from measurement as ESAU of the subject shoe.
The men's athletic shoe, pattern S88192M, is classifiable
under subheading 6402.99.80, HTSUS, which provides for other
footwear with outer soles and uppers of rubber or plastics,
other, other, valued over $6.50 but not over $12/pair. The
applicable rate of duty for this provision is 90 cents per pair
plus 20% ad valorem.
Sincerely,
John Durant, Director
Commercial Rulings Division