CLA-2 CO:R:C:M 950402 NLP
Mr. Joseph M. Collins
Polo International
1699 S. Hanley Road
St. Louis, MO 63144
RE: Men's high-top athletic hiking shoe; external surface area
of the upper; chapter 64; note 4(a) to chapter 64;
accessories or reinforcements; subheading 6402.91.70/80/90;
HRL 081305; HRL 087788; HRL 950666; NYRL 867245
Dear Mr. Collins:
This is in response to your letter dated September 3, 1991,
in which you requested a tariff classification under the
Harmonized Tariff Schedule of the United States (HTSUS) for men's
high-top athletic hiking shoes. A sample shoe was submitted for
our examination.
FACTS:
The sample, labeled ASR #20021, is a men's high-top
athletic shoe with a unit-molded plastic bottom and a plastic and
textile upper. The unique feature in this shoe is that the
"tongue" portion of the upper is integral with the back collar
portion of the upper, making a shaft which is like the top of a
bootie. The "tongue" is not of the gusseted or bellows type. It
is sewn to the upper and is stitched to the inner component of
the upper. The "tongue" lays flat with the rest of the
collar/bootie portion of the upper. The front bottom portion of
the upper has eyelet stays and laces which run in a cylindrical
plane above the cylindrical plane of the collar/bootie. The
"tongue" and a small amount of the sides of the collar/bootie are
of textile; the back and rest of the sides of the collar are
plastic. A black piece of plastic with small raised dots is
attached to the mid-section of both sides of the shoe and around
the back of the shoe above the heel. The shoe also has two sewn-
on emblems; one on the "tongue" portion made of textile, the
other on the side of the collar made of plastic. In addition to
three open eyelet stays, the shoe also has one upper plastic
eyelet stay on each side.
ISSUE:
Is the "tongue" portion of the shoe considered to be part of
the external surface area of the upper.
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.
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 similar
attachments.
You claim that the upper is made of man-made materials as is
the plastic unit outsole. Therefore, the shoes should be
classified under subheading 6402.99.15, HTSUS, which provides for
other footwear with outer soles and uppers of rubber or plastics,
other footwear, other, having uppers of which over 90 percent of
the external surface area (including any accessories or
reinforcements such as those mentioned in note 4(a) to this
chapter) is rubber or plastics..., other.
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, however foam/tricot is normally a lining material and
is not a plausible upper material. Moreover, 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.
Several of the items on the shoe are considered accessories
and are excluded when determining the external surface area of
the upper. The first piece we would exclude is the black piece
of plastic around the back of the shoe as it is an accessory and
its removal would only expose additional areas of the plastic
upper. See, HRL 950666 dated November 22, 1991. In addition, the
two emblems are excluded as they are merely ornamentation.
The next issue to be decided is whether the "tongue" portion
is excluded when determining the external surface area of the
shoe's upper. If the textile tongue is considered in the
calculation of the external surface area of the upper, the shoe's
upper would be less than 90 percent plastic and the shoe would be
classified in subheading 6402.91.70, HTSUS, which provides for
other footwear with outer soles and uppers of rubber or plastics,
other footwear, covering the ankle, other, other, valued over $3
but not over $6.50/pair or in subheading 6402.91.80, HTSUS, if
the shoes are valued over $6.50 but not over $12/pair or in
subheading 6402.91.90, HTSUS, if the shoes are valued over
$12/pair. If the textile tongue is not included in determining
the external surface area of the shoe's upper, the shoe's upper
would be over 90 percent plastic and the shoe would be classified
in subheading 6402.91.40, HTSUS, which provides for other
footwear with outer soles and uppers of rubber or plastics,
other footwear, covering the ankle, having uppers of which over
90 percent of the external surface area (including any
accessories or reinforcements such as those mentioned in note
4(a) to this chapter) is rubber or plastics....
Headquarters Ruling Letter 081305, dated March 10, 1988,
held that the separate stitched-on tongue was excluded in
determining the external surface area of a shoe's upper. While
the "tongue" in the subject shoe is stitched on, it is not
separate; it is integral with the back collar portion of the
upper. However, New York Ruling Letter (NYRL) 867245, dated
October 10, 1991, dealt with the classification of the "Air
Jordan" athletic shoe, which had a "tongue" portion similar in
construction to the subject shoe's "tongue". In the "Air Jordan"
shoe the textile tongue was stitched to, and integral with, a
textile back inner component which was lasted to the insole,
giving the entire textile component a " bootie-like" appearance.
NYRL 867245 stated that the textile "tongue" portion of the part
referred to as "bootie-like" was not included in determining the
external surface area of the shoe's upper.
In this case, the "tongue" portion is stitched-to the
textile inner component and to the collar/bootie. However, the
"tongue" portion is on a plane lower than a portion of the upper
and is partially covered by eyelet stays. Therefore, we would
not consider the "tongue" portion to be part of the upper and we
would exclude the "tongue" portion in determining the external
surface area of the shoe's upper. See, HRL 087788, dated February
26, 1991. However, the collar/bootie is included in determining
the external surface area of the upper. Thus, it is apparent
that the external surface area of the shoe's upper, even when
including the small textile portions of the collar and the
accessories and reinforcements, is over 90 percent plastic. The
subject shoe is classified in subheading 6402.91.40, HTSUS.
HOLDING:
The subject shoe is classified in subheading 6402.91.40,
HTSUS, which provides for other footwear with outer soles and
uppers of rubber or plastics, other footwear, covering the
ankle, having uppers of which over 90 percent of the external
surface area (including any accessories or reinforcements such as
those mentioned in note 4(a) to this chapter) is rubber or
plastics.... The rate of duty is 6 percent ad valorem.
Sincerely,
John Durant, Director
Commercial Rulings Division