HQ 081388
April 13 1989
CLA-2 CO:R:C:G 081388 DFC
Ms. Pat Schuermann
Brown Group International
8400 Maryland Avenue
P.O. Box 450
St. Louis, Missouri 63166
RE: Tariff Classification of certain footwear manufactured in
Korea
Dear Ms. Schuermann:
In a letter dated November 25, 1987, you inquired as to
the tariff classification of certain footwear under the Tariff
Schedules of the United States and also under the Harmonized
Tariff Schedule of the United States Annotated (HTSUSA).
Inasmuch as the HTSUSA became effective on January 1, 1989, our
ruling will be limited to the provisions of that schedule.
FACTS:
Samples designated as Stein Pattern #93707, Champion
Pattern #95403 and Barley Pattern # 95402 were submitted for
examination.
Stein Pattern #93707 is a men's snow jogger which measures
approximately 10 inches in height. It has a polyurethane upper
(printed to resemble woven fabric), piping trim across the
vamp, vinyl mudguards, partial rubber outside heel counter, EVA
wedge midsole and rubber outer sole.
Champion Pattern #95403 is a men's shoe measuring
approximately 7-1/4 inches in height. In has a textile upper,
suede overlays, PU padded collar, rubber foxing band, EVA
midsole and rubber outer sole.
Barley Pattern #95402 is a men's shoe measuring
approximately 5-1/2 inches in height. It has a textile upper,
split leather overlays, padded collar and tongue, rubber toe
bumper, heel stabilizer, EVA midsole and rubber outer sole.
- 2 -
ISSUE:
Does the Stein Pattern #93707 have a rubber or plastic
sole, the sidewalls of which rise to a point more than 3cm (1.2
inches) above the top of the outer sole?
What material constitutes the external surface area of the
uppers of Champion Pattern #95403?
LAW AND ANALYSIS:
Stein Pattern #93707
Subheading 6402.91.40, HTSUSA, provides in pertinent part
for other footwear with outer soles and uppers of rubber or
plastics, 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 except * * * (2) except footwear
(other than footwear having uppers which from a point 3cm above
the top of the outer sole are entirely of non-molded
construction formed by sewing the parts together and having
exposed on the outer surface a substantial portion of
functional stitching) * * *.
If the rubber heel mold is part of the sole,
classification under subheading 6402.91.40, HTSUSA, is
precluded because the boot has a rubber or plastic sole, the
sidewalls of which rise to a point more than 3cm (1.2 inches)
above the top of the outer sole.
A careful examination of the sample shows that the rubber
heel mold is simply an overlay onto the upper and not part of
the sole. Consequently, the sample is not precluded from
classification under subheading 6402.91.40, HTSUSA.
Champion Pattern #95403
Note 4(a) to Chapter 64, 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, edgings, ornamentation, buckles, tabs, eyelet stays or
similar attachments."
Subheading 6404.11.20, HTSUSA, provides for footwear with
outer soles or rubber, plastics, leather or composition leather
and uppers of textile materials, sports footwear, tennis shoes,
- 3 -
basketball shoes, gym shoes, training shoes and the like,
having 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.
It is clear that when both the leather accessories and the
reinforcing rubber foxing band are removed you have a textile
surface. However, when you only add back to the external
surface the leather overlays, a question arises as to the
portion of leather on the upper that is under the rubber foxing
band, especially since it is considered a rubber part of the
exterior surface area under the Tariff Schedules of the United
States. Inasmuch as the rubber tape is excluded from
computation as external surface area of the upper by Note 4(a)
to Chapter 64, HTSUSA, there are two plausible alternatives:
1. The entire leather accessory should be
added back with the rubber tape over it
removed. In this way we are including
only the leather accessories in the upper's
external surface area.
2. Only that portion of the leather surface
visible in the finished shoe should be
included as external surface area.
Consequently, the upper's external surface
in that area with three layers, i.e.,
textile, leather and rubber, would be
textile.
It is our view that the first alternative is the more
logical position. Therefore, the upper's external surface area
is over 50 percent leather which mandates classification of the
sample under subheading 6404.11.20, HTSUSA.
Barley Pattern #95402
It is clear based on a visual examination of the sample
that more than 50 percent of the external surface area of its
upper is leather. Consequently, footwear represented by the
sample is classifiable under subheading 6404.11.20, HTSUSA.
- 4 -
HOLDING:
Champion Pattern #95403 and Barley Pattern #95402 are
classifiable under subheading 6404.11.2030, TSUSA, as footwear
with outer soles of rubber, plastics, leather or composition
leather and uppers of textile materials, sports footwear,
tennis shoes, basketball shoes, gym shoes, training shoes and
the like, having 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 applicable rate of duty for this
provision is 10.5 percent ad valorem.
Stein Pattern #93707 is classifiable under subheading
6402.91.4015, HTSUSA, as other footwear with outer soles and
uppers of rubber or plastics, 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 applicable rate of duty for this provision is 6 percent ad
valorem.
Sincerely,
John Durant, Director
Commercial Rulings Division
joan jackson library 081388c
6cc: Area Director, New York Seaport
1cc: James Sheridan New York Seaport
1cc: District Director, St. Louis Missouri
DFCahill:jaj:4/11/89