CLA-2 CO:R:C:G 083059 NLP
Ms. Karen Faus
Traffic/Import
16160 S.W. Upper Boones Ferry Road
Portland, Oregon 97224
Re: Avia footwear styles 835M and 840M
Dear Ms. Faus:
This is in response to your inquiry of April 18, 1988,
requesting a tariff classification for Avia athletic footwear
under the Harmonized Tariff Schedule of the United States
(HTSUS). Samples were submitted for examination.
FACTS:
The footwear at issue is AVIA models 835 and 840. The
components of each shoe consist of: a leather toe cap, a leather
vamp, leather quarters, a leather strip attached from eyelet
stay to eyelet stay around the back of the ankle, a hard plastic
heel stabilizer, a vinyl tongue, a vinyl underlay basted to the
vamp which extends to the heel. The AVIA 835 model has a textile
padded collar which is only about 1 inch high and the top of
which would fit under the ankle. The AVIA 840 model has a
textile padded collar which is about 3 inches high and covers the
ankle.
ISSUE:
What is the external surface of the uppers of AVIA models
835 and 840 for tariff classification purposes?
LAW AND ANALYSIS:
Classification of merchandise under the HTSUS is in
accordance with the General Rules of Interpretation (GRI's),
taken in order. GRI 1 provides that classification is determined
in accordance with the terms of the headings and any relevant
Section or Chapter notes.
-2-
Note 4(a) to Chapter 64, HTSUS, states 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 similiar
attachments.
Furthermore, 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
material. For example, leather or vinyl are plausible upper
materials for an athletic shoe, however foam/tricot is normally
a lining material and is 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 footwear is composed of various layers of
material, the issue to be addressed is which materials should be
considered in determining the composition of the external surface
area of the upper of the footwear.
In deciding what the external surface of the AVIA models
are, we first exclude the separate, stitched-on, textile tongue
and shoelaces, pursuant to HRL 081305, March 10, 1988. We would
also exclude from the outer surface of the shoe the 1/2 inch high
sidewall of the rubber cupsole, since it is clearly a
reinforcement.
In addition, we have excluded the white leather piece on the
840 model, which goes around the back of the ankle and is
attached at both eyelet stays. This leather piece only serves as
-3-
an anchor for the top three eyelets and its removal exposes
additional areas of the textile outside collar. We have also
excluded the thin, red, fabric "edging" located on the leather
vamp. It is not a traditional edging since it is between two
pieces of leather and is not at the edge of the upper. Since the
edging is clearly an ornamental strip, as defined in Explanatory
Note D to Chapter 64, it is not taken into account in deciding
the external surface area of the upper.
In determining the constituent material of the footwear's
upper, certain parts of the upper have not been excluded. The
plastic outside counter around the back of the heel has not been
excluded. Even though the outside counter functions primarily as
an auxiliary stiffener, when removed it exposes a cardboard
counter (impregnated with plastic) which lies on top of the non-
woven fabric lining layer. This lining layer, if left, would not
form a plausible upper for the footwear in question.
Moreover, the textile padded collars are not excluded from
the upper's external surface area. Although their function is
to add extra comfort to the shoe and is therefore "accessory-
like", the collars are an integral part of the shoe as a whole.
The removal of the collars would expose to view more of the
wearer's ankle. The linings of the padded collars go all the
way down to the insole and serve as 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 of the shoe.
In addition, the leather pieces and the two red, plastic
eyelet anchors on the 840 model have not been excluded from its
upper. Removal of each of these pieces would expose a
substantial area of the non-woven fabric outer lining layer,
which could not form a plausible upper for the Avia model 840.
Based on the foregoing analysis, after removing the textile
tongue and shoelaces, the leather piece attached to the eyelet
stays, and the thin red fabric 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. Although there is a plastic coating on the
leather surface, the coating is less than .15mm thick, thereby
qualifying the surface as leather and not plastic for
classification purposes. Thus, the instant footwear is properly
classifiable under HTSUS subheading 6403.
-4-
HOLDING:
The AVIA model 840 is classifiable in subheading
6403.91.6040, 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
rate of duty is 8.5% ad valorem.
The AVIA model 835 is classifiable in subheading
6403.99.6040, which provides for athletic footwear as described
above, except that the upper does not cover the wearer's ankle
bone. The rate of duty is 8.5% ad valorem.
Sincerely,
John Durant, Director
Commercial Rulings Division