Footwear, athletic; Uppers, external surface area; Accessories or reinforcements; Plausible upper material; HRL's 953556, 084013, 950202

HQ 956952 October 3 1994 CLA-2 CO:R:C:M 956410 DFC CATEGORY: Classification TARIFF NO.: 6402.99.80 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