CLA-2 CO:R:C:M 088390 DFC
Mr. Joseph F. Straus
BBC International Ltd.
19 West 34th Street
New York, N.Y. 10001
Re: Footwear, casual, men's. Upper, external surface area
Dear Mr. Straus:
In a letter dated November 28, 1990, you inquired as to the
tariff classification under the Harmonized Tariff Schedule of the
United States Annotated (HTSUSA), of certain casual footwear. A
sample was submitted for examination.
FACTS:
The sample is a man's casual shoe with a rubber sole. You
state that the upper is plastic with leather fibers imbedded into
it. There is a fabric backing as a supporting material
underneath the plastic. The upper has an approximately 1/2 inch
wide plastic/rubber padded collar around the circumference of
the top line. The shoe also has a lace up closure and a
plastic/rubber overlay at the base of the closure measuring
approximately 3 inches in length and 9/16 inch in width.
We note that the shoe has no marking of any kind and we
presume that when the shoe is imported it will have a proper
country of origin marking.
ISSUE:
What material constitutes the external surface area of the
shoe's upper?
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LAW AND ANALYSIS:
It is your opinion that because the upper of the shoe is
over 90 percent plastics that it is properly classifiable under
subheading 6402.99.1560, HTSUSA, as other footwear with outer
soles and uppers of rubber or plastics, 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.
In applying the HTSUSA, the Customs Service must follow the
terms of the statute. Classification of goods under the HTSUSA
is governed by the General Rules of Interpretation (GRI's). GRI
1 provides that "classification shall be determined according to
the terms of the headings and any relative section or chapter
notes, and, provided such headings or notes do not otherwise
require, according to [the remaining GRI's taken in order]." In
other words, classification is governed first by the terms of
the headings of the tariff and any relative section or chapter
notes.
Legal Note 4(a) to Chapter 64, HTSUSA, reads as follows:
4. Subject to note 3 to this chapter
(a) 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;
It 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. The upper of the sample has
the appearance and the feel of roughed suede leather. However,
the plastic base does not appear anywhere on the surface 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
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material (not layer) which is topmost on the upper. For
example, a leather coated with plastic which is .1 mm thick has
a leather "external surface", because the plastic coated leather
is "leather" for HTSUSA purposes, even though the outermost
layer is unquestionably plastic.
Based on an examination of the sample it is our opinion that
its upper should be considered to have an external surface of
composition leather.
Inasmuch as Chapter 64 specifically states "leather or
composition leather" in several places, e.g., 6404.20, HTSUSA, we
do not consider "composition leather" to be included within the
term "leather" as used in subheading 6403, HTSUSA.
HOLDING:
The sample shoe is classifiable under subheading 6405.10.00,
HTSUSA, as other footwear, with uppers of composition leather.
The applicable rate of duty for this provision is 10 percent ad
valorem.
Sincerely,
John Durant, Director
Commercial Rulings Division
6cc AD NY Seaport
1cc John Durant
1cc James Sheridan NY Seaport
1cc Legal Reference