CLA-2 CO:R:C:M 950666 DWS
Mr. Dale Watanabe
Director of Customs
Nike, Inc.
One Bowerman Drive
Beaverton, OR 97005-6453
RE: Footwear; "Air Flight Huarache"; External Surface Area of the
Upper; Chapter 64, Note 4(a); Accessories or Reinforcements;
NY 867245
Dear Mr. Watanabe:
This is in response to your letter of October 7, 1991,
concerning the classification of the "Air Flight Huarache" under
the Harmonized Tariff Schedule of the United States Annotated
(HTSUSA).
FACTS:
The "Air Flight Huarache" (product code 153023 140 00) is a
boy's high-top, lace-up athletic shoe. The shoe's upper is made
of leather, plastic, and textile. What is unique about this shoe
is that the "tongue" and the inner component of the upper are the
same textile piece. The "tongue" is not sewn to the upper. This
gives the entire textile component a "bootie-like" appearance.
The entire piece is stitched to the back part of the insole.
Contained on the sides of the front part of the upper is silver
and black textile trim. Stitched on the back of the textile part
of the upper is a black textile pull tab. The shoe has both
lower and upper leather eyelet stays. The upper eyelet stays,
colored black, partially cover the textile "tongue". However, at
the top of the eyelet stays, there is a horizontal, topline strip
that will not touch any part of the upper. The lower eyelet
stays, colored white, completely cover the textile "tongue". A
molded plastic piece , displaying the logo "Nike", is sewn from
the mid-section of one side of the shoe and around the back part
of the upper to the mid-section of the other side of the shoe.
The shoe has a bottom consisting of a molded, plastic outsole and
midsole.
ISSUE:
What is the proper classification of the "Air Flight
Huarache" under the HTSUSA?
LAW AND ANALYSIS:
Classification of merchandise under the HTSUSA 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 chapter
or section notes.
You claim that the constituent material of the external
surface area of the upper is leather and, therefore, it is your
position that the merchandise is classifiable under subheading
6403.91.60, HTSUSA, which provides for: "[f]ootwear with soles of
rubber, plastics, leather or composition leather and uppers of
leather: [o]ther footwear: [o]ther."
Chapter 64, Note 4(a), HTSUSA, provides that:
[t]he 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.
Several of the items, as described, on the shoe cannot be
considered in the calculation of the external surface area of the
upper because they are "accessories or reinforcements". You
agree that the black textile pull tab stitched to the back part
of the upper is excluded. You also agree that the silver and
black textile trim on the front part of the upper is excluded.
Because the "tongue" and inner component of the upper are
the same piece, we find that, in this case, the "tongue" is to be
considered in the calculation of the external surface area of the
upper. It is our position that the "tongue" in this case is
distinguishable from "tongues" like the one in NY 867245, dated
October 10, 1991. That case involved the "Air Jordan" athletic
shoe. However, the "tongue" was stitched to the textile back
inner component which was lasted to the insole. Therefore, the
"tongue" was excluded from consideration. In this case, the
"tongue" is part of the upper. The "tongue" and the textile back
inner component of the "Air Flight Huarache" are the same piece
and are, consequently, part of the upper.
Concerning the lower and upper stays, the lower eyelet stays
are excluded and the upper eyelet stays are included in the
calculation of the external surface area of the upper. The lower
eyelet stays partially cover the "tongue" and are excluded under
chapter 64, Note 4(a), HTSUSA, as "accessories or
reinforcements". However, the upper eyelet stays are not to be
excluded. The stays do partially cover the "tongue", but there
is also an area at the topline strip of the stays that does not
cover the upper in any way. Because of this, we do not find that
the upper eyelet stays are "accessories or reinforcements".
Finally, it is our position that the molded, plastic piece
bearing the logo "Nike", which wraps around the back portion of
the upper, is an "accessory or reinforcement" and is therefore
excluded from the calculation of the external surface area of the
upper. The plastic piece, which is connected to the upper from
midsection to midsection of the shoe, does cover part of the
textile upper.
HOLDING:
The black, textile pull tab, the silver and black textile
trim, the textile "tongue"/inner component piece, and the upper
eyelet stays are to be considered in calculating the external
surface area of the upper. The molded, plastic piece and the
lower eyelet stays are excluded from consideration.
In light of these findings, if the constituent material of
the external surface area of the upper is leather, then the
merchandise is classifiable under subheading 6403.91.60, HTSUSA,
which provides for: "[f]ootwear with outer soles of rubber,
plastics, leather or composition leather and uppers of leather:
[o]ther footwear: [c]overing the ankle: [o]ther." The general,
column one rate of duty is 8.5 percent ad valorem.
If the constituent material of the external surface area of
the upper is textile, then the merchandise is classifiable under
subheading 6404.11.20, HTSUSA, which provides for: "[f]ootwear
with outer soles of rubber or plastics, leather or composition
leather and uppers of textile materials: [f]ootwear with outer
soles of rubber or plastics: [s]ports footwear: [h]aving uppers
of which over 50 percent of the external surface area (including
any leather accessories or reinforcements such as those mentioned
in note 4(a) to this chapter) is leather." The general, column
one rate of duty is 10.5 percent ad valorem.
Sincerely,
John Durant, Director
Commercial Rulings Division