CLA-2 CO:R:C:G HQ 082702 WAW
Ms. Karen M. Faus
Avia
P.O. Box 23309
Portland, OR 97223
RE: Basketball shoe; external surface area of upper
Dear Ms. Faus:
This is in response to your letter dated April 18, 1989,
requesting the classification of Avia athletic footwear under the
Harmonized Tariff Schedule of the United States Annotated
(HTSUSA).
FACTS:
The footwear at issue is a high-top basketball shoe with a
rubber shell molded bottom. The components of the shoe consist
of: a leather toe cap, a leather vamp, leather quarters, a
plastic strip attached from eyelet stay to eyelet stay around the
back of the ankle for support, a hard plastic heel stabilizer, a
padded vinyl collar, a vinyl tongue, a vinyl underlay basted to
the vamp which extends to the heel, and a fabric lining with foam
rubber padding.
ISSUE:
What is the external surface of the upper of the sample
athletic footwear for tariff purposes?
LAW AND ANALYSIS
The General Rules of Interpretation (GRI's) set forth the
manner in which merchandise is to be classified under the HTSUSA.
GRI 1 requires that classification be determined first according
to the terms of the headings of the tariff and any relative
section or chapter notes and, unless otherwise required,
according to the remaining GRI's, taken in order.
Note 4(a) to Chapter 64, HTSUSA, provides that:
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.
Moreover, General Explanatory Note (D) to Chapter 64 states 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.
It is Customs position that the term "accessories and
reinforcements," although not fully defined, includes any
additional material added to an otherwise completed upper
provided that the underlying material is a plausible upper
material, although not necessarily the best material. For
example, leather or vinyl are plausible upper materials for an
athletic shoe; however, foam/tricot is normally a lining material
and is thus not a plausible upper material. Furthermore, 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. In no instance may only part of
an item be excluded or included from the upper. Since the
subject merchandise is composed of various layers of material,
the issue to be addressed is which materials should be
considered in determining the outer surface of the shoe.
In the instant case, the separate, stitched on, textile
tongue and shoelaces are excluded from computation as part of the
external surface area of the upper, pursuant to HRL 081305, dated
March 10, 1988. Also excluded from the outer surface of the
shoe is the 1/2 inch high sidewall of the rubber cupsole, since
it is clearly a reinforcement.
Additionally, we have excluded the grey plastic piece around
the back of the ankle which is attached at both eyelet stays.
This plastic piece only serves as a stiffener around the back of
the ankle and its removal exposes additional areas of the
leather vamp and the textile outside collar. Similarly, we have
excluded the thin, blue, plastic "edging" located on the leather
vamp. The edging is not a traditional edging since it is
stitched between two pieces of leather and is not at the edge of
the upper. Thus, the edging resembles an ornamental strip, as
defined in Explanatory Note D to Chapter 64, and is not taken
into account in computing the external surface area.
Customs has not excluded the plastic outside counter around
the back of the heel from the constituent material of the upper
for classification purposes. Although the outside counter is
designed primarily as an auxiliary stiffener, when removed it
exposes a cardboard counter (impregnated with plastic) which lies
on top of the foam/tricot lining layer. Neither of these
materials, however, constitutes a plausible exterior upper area
for classification purposes.
Furthermore, the textile padded collar of the shoe is not
excluded from the upper's external surface area. Although the
padded textile collar appears to provide reinforcement and
support to the back of the ankle, the collar is an integral part
of the shoe as a whole. Additionally, the textile collar
comprises more than simply the ankle portion of the shoe, since
the lining of the padded collar covers the insole and also
comprises the upper's lining in the rear of the shoe. Thus, the
collar is not a mere accessory and should be included as part of
the constituent material of the upper for classification
purposes.
Based on the foregoing analysis, after removing the textile
tongue and shoelaces, the gray plastic piece attached to the
eyelet stays, and the thin blue plastic edging on the vamp, it is
apparent that the leather comprises the greatest external
surface area of the shoe, rather than either the textile
materials, the rubber or the plastics. Moreover, although there
is a plastic coating on the leather surface, the coating is less
than .15mm thick, thereby qualifying as leather and not plastic
for classification purposes. Thus, it is Customs position that
the subject merchandise is properly classifiable under the
subheading in the HTSUSA which provides for footwear with
leather uppers.
HOLDING:
The sample men's version (822M) basketball shoe is
classifiable under subheading 6403.91.6040, HTSUSA, which
provides for athletic footwear, in which the upper's external
surface is predominately leather; in which the outer sole's
external surface is predominately rubber or plastics; which is
other than "sports" footwear; which lacks a protective metal toe-
cap; in which the top of the upper covers the wearer's ankle
bone; whose sole is attached to the upper by a means other than
welt stitched construction; and which is larger than adults'
American size 5-1/2 and worn only by males. The applicable rate
of duty is 8.5% ad valorem. The women's version (822W)
basketball shoe is classifiable under subheading 6403.91.9040,
HTSUSA, which is identical to the above provision except that it
is worn by females in size 4 or larger. The rate of duty for the
822W is 10% ad valorem.
Sincerely,
John Durant, Director
Commercial Rulings Division