CLA-2 CO:R:C:M 089572 DWS
Mr. Robert B. Silverman
Grunfeld, Desiderio, Lebowitz & Silverman
12 East 49th Street
New York, NY 10017
RE: Footwear; Golf Shoes; Uppers of Plastic Laminated Leather;
Explanatory Note 41.09(2); Explanatory Note (D) to
Chapter 64; GRI 3(b); HQ 088390
Dear Mr. Silverman:
This is in response to your letters of May 23, 1991,
March 4, 1992, and March 13, 1992, written on behalf of Foot-Joy,
Inc., concerning the classification of golf shoes under the
Harmonized Tariff Schedule of the United States (HTSUS).
FACTS:
The merchandise consists of golf shoes. The upper of the
shoe is constructed of a combination leather and plastic
material. This material is comprised of a top layer of pre-
formed polyurethane, known as "Permair", laminated to leather.
The polyurethane sheet has a thickness of 0.45mm whereas the
leather to which the polyurethane is laminated has a thickness of
1.12mm. Metal spikes have been inserted into the bottom of the
shoe's sole. The shoes have been designed to be worn in lieu of
other golf shoes as a protection against water or inclement
weather.
ISSUE:
What is the proper classification of the subject golf shoes
under the HTSUS?
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
according to the terms of the headings and any relative section
or chapter notes.
In understanding the HTSUSA, the Harmonized Commodity
Description and Coding System Explanatory Notes may be utilized.
The Explanatory Notes, although not dispositive, are to be used
to determine the proper interpretation of the HTSUS. 54 Fed.
Reg. 35127, 35128 (August 23, 1989). Explanatory Note 41.09(2)
(p.608), HTSUS, provides that:
[p]atent Laminated Leather also known in the trade as patent
coated leather, which is leather covered with a pre-formed
sheet of plastics of a thickness exceeding 0.15 mm but less
than half the total thickness and having the lustrous
mirror-like appearance of patent leather. (Leather covered
with a pre-formed sheet of plastics the thickness of which
exceeds 0.15 mm but is not less than one half of the total
thickness falls in Chapter 39).
Based upon the guidelines espoused under Explanatory Note
41.09, HTSUS, it is claimed that the merchandise is classifiable
under subheading 6403.19.45, HTSUS, which provides for:
"[f]ootwear with outer soles of rubber, plastics, leather or
composition leather and uppers of leather: [s]ports footwear:
[o]ther: [f]or men, youths and boys: [o]ther."
HQ 081839, dated July 6, 1988, referred to chapter 41,
HTSUS, Explanatory Notes in determining that the uppers of
footwear classifiable in chapter 64, HTSUS, were of plastic.
This was an advisory ruling issued before the HTSUS took effect
on January 1, 1989. While it represented the position of the
Customs Service at that time, upon review, we have determined
that its reasoning is in error, and no longer represents the
position of Customs. We find no authority which directs that an
Explanatory Note for chapter 41, HTSUS, pertaining to patent
leather, should be applied to the classification of footwear
under chapter 64, HTSUS, where the question of "patent leather"
is not involved. We think that this is an incorrect application
of the Explanatory Note. This is especially true in light of
chapter 64, Note 4(a), HTSUS, which provides, in part, that the
material of the footwear upper shall be taken to be the
constituent material having the greatest external surface area.
Therefore, for tariff classification purposes, Explanatory
Note 41.09, HTSUS, is only to be used in connection with products
made of "patent leather" and should not be used to assist in
classifying footwear with plastic laminated uppers which are not
claimed to be "patent leather".
In part, Explanatory Note (D) (pp. 874-875) to chapter 64,
HTSUS, provides that "[f]or the purposes of the classification of
footwear in this Chapter, the constituent material of the uppers
must also be taken into account. . . If the upper consists of
two or more materials, classification is determined by the
constituent material which has the greatest external surface
area . . ."
The upper of the shoe is constructed of a combination
leather plastic material and, thus, the constituent material of
the upper is the plastic laminated leather.
Because the golf shoe's upper consists of two materials, GRI
3(b) must be consulted to determine the upper's essential
character. It provides that:
[m]ixtures, composite goods consisting of different
materials or made up of different components, and goods put
up in sets for retail sale, which cannot be classified by
reference to 3(a), shall be classified as if they consisted
of the material or component which gives them their
essential character, insofar as this criterion is
applicable.
It is our position that, under GRI 3(b), the essential
character of the plastic laminated leather is the leather itself.
The leather gives the shoe's upper its form and shape. The
plastic lamination merely enhances the leather's durability and
water resistant qualities.
HQ 088390, dated February 19, 1991, concerning the
classification of a man's casual shoe with an upper of plastic
embedded with leather fibers, presented a somewhat analagous
situation. It was held that:
[i]t has been our position that a piece of material which
does not constitute a visible part of the external surface
of the upper of a finished shoe should not be considered
part of the external surface area of the upper . . . In
general, unless there is a special note in chapter 64 [such
as note 3 concerning plastic coated textile or note 4(a)
concerning multiple materials], the "external surface" of an
upper is determined by the tariff status of the composite
material (not layer) which is topmost on the upper.
Consequently, based upon Explanatory Note (D) to chapter 64,
HTSUS, GRI 3(b), and HQ 088390, the golf shoe is classifiable
under subheading 6403.19.45, HTSUS.
HOLDING:
Based upon the test provided in Explanatory Note (D) to
chapter 64, HTSUS, the plastic laminated leather is the
constituent material of the external surface area of the subject
shoe's upper. Under GRI 3(b), the essential character of the
plastic laminated leather is the leather itself.
The subject golf shoe is classifiable under subheading
6403.19.45, HTSUS, which provides for: "[f]ootwear with outer
soles of rubber, plastics, leather or composition leather and
uppers of leather: [s]ports footwear: [o]ther: [f]or men, youths
and boys: [o]ther."
Sincerely,
John Durant, Director
Commercial Rulings Division