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HQ 087430

October 22, 1990

CLA-2 CO:R:C:G 087430 DFC


TARIFF NO: 6403.91.6040

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

RE: Reconsideration of Headquarters Ruling Letter (HRL) 081646. Footwear, athletic; Accessories or Reinforcements; HRL 081646 revoked

Dear Mr. Pellegrini:

In a letter dated June 19, 1990, you requested that we reconsider the result reached in HRL 081646 dated March 27, 1989, concerning the tariff classification of a basketball shoe produced in Korea.


The footwear which was the subject of HRL 081646 was described therein as "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."

In the subject ruling we concluded that a completely hidden vinyl upper underlay was the material of the upper, while the leather which completely covered the "plausible" upper material was merely accessories or reinforcements. Thus, the footwear having uppers of rubber or plastics rather than leather was classified under the provision for 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, under subheading 6402.91.8030, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), with duty at the rate of 90 cents per pair plus 20 percent ad valorem.

You maintain that leather constitutes the constituent material having the greatest external surface area of the uppers involved which requires that the footwear be classified 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.


Are the toe caps, vamps, quarters and heel counters which are made of leather considered accessories or reinforcements for the purposes of Chapter 64, HTSUSA?


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."

Upon reconsideration, it is now our position that a material which comprises 100 percent of the external surface area of an upper must be more than mere accessories and reinforcements, even though it may have underneath it a plausible upper material. However, it is possible that there may be types of construction which we would consider to be exceptions to this rule.

Noting that exceptions may evolve with new designs, we would agree that on a case by case basis a material in a shoe upper which is completely covered by other material should usually not be considered in external surface area measurements, and that the other material should be considered to be the material of the external surface.


It is now our opinion that the external surface area of the footwear uppers in issue is leather. Consequently, the footwear is properly classifiable under subheading 6403.91.6040, HTSUSA, with duty at the rate of 8.5 percent ad valorem.

In accordance with the above determination, HRL 081646 is revoked pursuant to 19 CFR 177.9(d).


John Durant, Director

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