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HQ 081646

March 27, 1989

CLA-2 CO:R:C:G 081646 c


TARIFF NO.: 6402.91.8030

John Pellegrini, Esq.
Ross & Hardies
529 Fifth Avenue
New York, New York 10017-4608

RE: Footwear; basketball shoe

Dear Mr. Pellegrini:

In a letter dated January 20, 1988, you inquired as to the tariff classification under the Harmonized Tariff Schedule of the United States (HTSUSA), of certain footwear produced in Korea.


The footwear involved is a man's high-top basketball shoe having a rubber shell molded bottom. The upper portion consists of: a leather toe cap; leather vamp, quarters, and heel counter (with vinyl and textile inserts) stitched to the toe cap and lasted; a hard plastic heel stabilizer between a vinyl underlay and the leather heel counter; a padded vinyl collar; a vinyl tongue; a vinyl underlay basted to the vamp and which extends to the heel; and, a fabric lining with foam rubber padding. The leather toe-cap, vamp, quarter and heel counter and the vinyl underlay are assembled prior to lasting. The leather components have a lasting allowance while the vinyl underlay has only a partial lasting allowance.

You maintain that the instant footwear is classifiable under subheading 6403.91.6040, HTSUSA, as footwear with outer soles of rubber, plastics, leather or composition leather and uppers of leather, other, footwear, covering the ankle, other, for men, youths and boys, other, basketball shoes, for men, other with duty at the rate of 8.5 percent ad valorem.


What is the identity of the constituent material of the upper?


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, edging, ornamentation, buckles, tabs, eyelet stays or similar attachments".

General Explanatory Note (D) to Chapter 64 states in pertinent part that "(i)f 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."

If the leather vamp, quarters and heel counter are accessories or reinforcements and the vinyl underlay is considered the external surface area, the constituent material of the upper would be plastic. However, if the leather vamp, quarters and heel counter are neither accessories nor reinforcements, they, along with the leather toe-cap, would make up the constituent material of the upper.

You assert that the common characteristic of the examples in Chapter Note 4(a) is that they are added to an otherwise complete upper in the sense that in the absence of the "accessories or reinforcements" it would still function to protect and support the foot. You claim that on the submitted sample that the vinyl "underlay" could not function in this manner and in use the support would tear away from the toe-cap. Furthermore, you state that the joining of the vamp to the leather toe cap secures the integrity of the upper at this stress point and that in the absence of the leather heel counter the stabilizer would provide little support to the wearer.

You point out that removal of the vinyl underlay would not leave an incomplete upper. Without the underlay the upper would function and neither it nor the shoe would break apart. Thus, it is clear that the vinyl underlay should be disregarded as an accessory or reinforcement. For this reason and the reasons previously stated the constituent material of the upper is leather which mandates classification of the footwear under subheading 6403.91.6040, HTSUSA.

We agree that the sample's upper will survive much more stress because of the presence of the referenced pieces. However, this is precisely the function of a "reinforcement." As to this upper, there are so many layers of material that some pieces could be considered as reinforcing reinforcements, but they would still be "reinforcements."

It is our position that the term "accessories and 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, even if not the best material. For example, vinyl is a plausible upper material in any athletic shoe, but foam/tricot is normally a lining material and is not a plausible upper material. On the submitted sample, the white leather outside counter, side pieces, upper eyelet stay/anchor, and toe bumper; the purple leather lower eyelet stay/anchor/side piece; the purple and gold plastic side flashes and counter (under the leather outside counter); and the rubber sidewalls of the cupsole are all added to a completed upper and are accessories or reinforcements. Therefore, we consider vinyl to be the material with the greatest external surface because the plastic quarters and collar clearly are larger than the leather toe piece.

The tongue and laces are excluded from computation as part of the external surface area of the upper following Headquarters Ruling Letter 081305 dated March 10, 1988.

With your supplemental letter dated October 11, 1988, you submitted a copy of a letter dated October 4, 1988, from Her Majesty's Customs and Excise holding that a shoe which you claim is identical in construction to the shoe in issue is classifiable under subheading 6403.91.15 covering footwear with leather uppers. It is your belief that this letter confirms your view as to the proper tariff classification of the footwear.

While the above-cited letter is useful in assisting us to arrive at a determination in this matter, we are not bound by an administrative decision of another government.


The sample basketball shoe is classifiable under subheading 6402.91.8030, HTSUSA, as other footwear with outer soles and uppers of rubber or plastics, other footwear, covering the ankle, other, other, valued over $6.50 but not over $12/pair, for men with duty at the rate of 90 cents per pair plus 20 percent ad valorem.


John Durant, Director

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