CLA-2 CO:R:C:G 084013 NLP
Ms. Karen Faus
Traffic/Import
Avia
16160 S.W. Upper Boones Ferry Road
Portland, Oregon 97224
RE: Athletic footwear
Dear Ms. Faus:
This is in response to your inquiry of April 18, 1988,
requesting a tariff classification of Avia athletic footwear
under the Harmonized Tariff Schedule of the United States
(HTSUS). Samples were submitted for our examination.
FACTS:
The footwear at issue is Avia models 880M Team and 880M In-
line. Each shoe consists of: a leather toe cap, a leather vamp,
leather quarters, a hard plastic heel stabilizer, a vinyl tongue,
a vinyl underlay basted to the vamp which extends to the heel,
molded 2 inch by 3 inch "AVIA" side piece/eyelet stay
reinforcements, molded 9 inch by 2 inch collar reinforcements, a
1 inch by 1-1/2 eyelet stay plug, molded 7 inch by 1 inch straps
with velcro-like fasteners inside, and two vinyl panels on each
side which are totally hidden by other components. In addition,
both models have textile padded collars which cover the ankle.
The only difference between the two models is that the 880M In-
line has split leather in the upper portion of the padded collar
and in the extra toe piece, while the 880M Team has a grain
leather in those places.
ISSUE:
What is the external surface of the uppers of models 880M
Team and 880M In-line for HTSUS tariff classification purposes?
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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.
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. 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. Since the subject footwear is composed of various
layers of materials, 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 determining what the external surfaces of the uppers of
the Avia models are, we first exclude the separate stitched on,
textile tongue and shoelaces, pursuant to HRL 081305, dated March
10, 1988. We would also exclude the 1/2 inch high sidewall of
the rubber cupsole as it is clearly a reinforcement.
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In addition, we have excluded the grey plastic wishbone
around the lower part of the padded collar. The removal of this
piece only exposes additional areas of the padded collar. We
have also excluded the blue textile "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.
However, the edging is clearly an ornamental strip, as defined
in Explanatory Note (D) to Chapter 64, and is, therefore, not
taken into account in deciding the external surface area of the
upper. Finally, the plastic/velcro ankle strap is excluded
because it is also a reinforcement.
In determining the constituent material of the footwear's
uppers, certain parts of the uppers 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. The lining layer, if left, would not
form a plausible upper for the footwear in question.
Moreover, the grey and blue plastic eyelet anchor/decoration
with the "Avia" lettering is not excluded from the external
surface of the instant footwear's uppers. Like many of the
accessories and reinforcements noted in Note 4(a) to Chapter 64,
the above piece embellishes or strengthens the surface to which
it is being added. However, unlike the named accessories and
reinforcements in Note 4(a) to Chapter 64, the above piece hides
the underlying surface to the point that the consumer is unaware
that the original surface exists. In the instant case, vinyl
portions are hidden by the grey and blue plastic eyelet/anchor
decoration. In our view, a piece of material which does not
constitute a visible part of the external surface of the upper of
the finished shoe should not be considered part of the external
surface area of the upper. Therefore, the vinyl quarters should
not be considered part of the external surface of the uppers,
while the above piece, which covers the vinyl quarters, should be
counted as part of the external surface area of the uppers.
Based on the foregoing analysis, after removing the textile
tongue and shoelaces, the grey plastic wishbone, the thin blue
textile edging on the vamp, and the plastic/velcro ankle strap,
it is apparent that the leather comprises the greatest external
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surface area of the shoe, rather than either the textile
materials, the rubber or the plastics. Thus, the instant
footwear is properly classifiable under Heading 6403, HTSUS.
HOLDING:
The Avia 880M Team and 880M In-line footwear are
classifiable in subheading 6403.91.6040, HTSUS, which provides
for athletic footwear, in which the upper's external surface is
predominately leather; in which the outer soles'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.
Sincerely,
John Durant, Director
Commercial Rulings Division