CLA-2 CO:R:C:M 953556 DFC
Mr. W. Andrew Ryu
Top Line Manufacturing Co.
Red Line Products Inc.
Passaic Industrial Center
Building 1F, 90 Dayton Avenue
Passaic, NJ 07055
RE: Upper, partial; Accessories or Reinforcements; Uppers,
external surface area; Composite goods; T.D. 84-59; HRL
084013
Dear Mr. Ryu:
Your letter dated February 2, 1993, addressed to the Area
Director of Customs in New York, concerning the tariff
classification under the Harmonized Tariff Schedule of the United
States (HTSUS), of a partial upper produced in the People's
Republic of China, has been referred to us for a direct reply to
you. A sample was submitted for examination.
FACTS:
The sample, item no. W-35, is clearly part of an upper
because it is the outside and inside collar and tongue of,
presumably, a rubber-footed "Bean Boot."
You maintain that the sample is properly classifiable under
subheading 6406.10.70, HTSUS, which provides for parts of
footwear, uppers and parts thereof, other than stiffeners, other
than formed uppers, of textile materials of which over 50 percent
of the external surface area (including any leather accessories
or reinforcements such as mentioned in note 4(a) to this chapter)
is leather.
ISSUE:
Of what material is the partial upper composed?
-2-
LAW AND ANALYSIS:
Classification of goods under the HTSUS 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. GRI 6,
HTSUS, requires that the GRI's be applied at the subheading level
on the understanding that only subheadings at the same level are
comparable. The GRI's apply in the same manner when comparing
subheadings within a heading.
GRI 2(b), HTSUS, provides in part that "[t]he classification
of goods consisting of more than one material or substance shall
be according to the principles of Rule 3."
GRI 3, HTSUS, reads in pertinent part as follows:
3. When by application of Rule 2(b) or for any other
reason goods are prima facie classifiable under two or
more headings, classification shall be effected as
follows:
(a) The heading which provides the most specific
description shall be preferred to headings
providing a more general description. However,
when two or more headings each refer to part only
of the materials or substances contained in mixed
or composite goods. . . those headings are to be
regarded as equally specific in relation to those
goods, even if one of them gives a more complete
or precise description of the goods.
(b) Mixtures, composite goods consisting of different
materials or made up of different components, and
goods put up in sets for retail sale which cannot
be classified by reference to 3(a), shall be
classified as if they consisted of the material or
component which gives them their essential
character, insofar as this criterion is
applicable.
-3-
The sample is a "composite good" consisting of leather
pieces sewn over a heavy, green woven fabric laminated to a thin
foam rubber/plastic (R-P) layer, the collar-lining consisting of
a dark blue lightweight, flannel-like fabric laminated to a
thicker layer of foam (R-P), metal eyelets, textile tongue and a
9 inch long piece of foam (R-P).
The article is prima facie classifiable under separate
subheadings of the tariff schedule which describe only a portion
of the materials in the article as whole. Following GRI 3(a),
HTSUS, subheading 6406.10.70, HTSUS, supra, which you claim is
applicable, and subheading 6406.10.90, HTSUS, which provides for
parts of footwear, uppers and parts thereof, other than
stiffeners, other than formed uppers, other, of textile material,
and subheading 6406.10.65, HTSUS, which provides for parts of
footwear, uppers and parts thereof, other than stiffeners, other
than formed uppers, of leather, are regarded as equally specific.
This requires application of GRI 3(b), HTSUS, supra, governing
the classification of composite goods.
The Harmonized Commodity Description and Coding System
Explanatory Notes (EN) to the HTSUS, although not dispositive,
should be looked to for the proper interpretation of the HTSUS.
See, 54 FR 35128 (August 23, 1989). EN VIII to GRI 3(b), at page
4, reads as follows:
(VIII) The factor which determines essential character
will vary as between different kinds of goods. It
may, for example, be determined by the nature of
the materials or component, its bulk, quantity,
weight or value, or by the role of a constituent
material in relation to the use of the goods.
Based on an examination of the sample, it is our opinion
that the essential character of the article is derived from its
textile portions. Our rationale for this conclusion is that
textile material predominate by bulk, weight, and value over the
other materials contained in the article.
-4-
A determination of the material which constitutes the
external surface area of this partial upper requires an
application of note 4(a), HTSUS, which 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[.]
The separate tongue is not considered to be either external
surface area or an accessory. See T.D. 84-59. It is to be
noted that Customs has taken the position that the term
"accessories or reinforcements," although not fully defined,
includes any additional material added to an otherwise completed
upper as long as the underlying material is a plausible upper
material, if not the best material. See Headquarters Ruling
Letter (HRL) 084013 dated March 26, 1990. The metal eyelets are
considered accessories or reinforcements (A-R) and are not
considered external surface area of the upper. Part of each of
the two leather pieces are "eyelet stays" in function and, in
that area, have the blue woven fabric underneath. This implies
A-R especially because "eyelet stays" are named as A-R in Note
4(a) to Chapter, 64, supra. A large majority of each of the two
leather pieces has only the foam side of the lining underneath
it, while a relatively small portion has blue fabric underneath.
Based on the foregoing, we consider the leather portions to
be A-R which results in the partial upper being of "textile
materials" within subheadings 6406.10.70-90, HTSUS. Within these
subheadings, the partial upper has clearly over 50% leather
surface after the A-R's are included. Consequently, the partial
upper is classifiable under subheading 6406.10.70, HTSUS, as
other parts of uppers of textile materials of which over 50
percent of the external surface area (including any leather
accessories or reinforcements such as mentioned in note 4(a) to
this chapter) is leather.
HOLDING:
The partial upper is entitled to duty free entry under
subheading 6406.10.70, HTSUS.
Sincerely,
John Durant, Director
Commercial Rulings Division