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HQ 950020

November 21, 1991

CLA-2 CO:R:C:M 950020 DFC


TARIFF NO.: 6402.99.80

District Director of Customs
300 South Ferry St.
Terminal Island
San Pedro, CA 90731

RE: Further Review of Protest No. 2704-91-100509; Upper, external surface area; Accessories, footwear; Reinforcements, footwear; Note 4(a) to chapter 64

Dear Sir:

This protest was filed against your decision in the liquidation of an entry covering a shipment of athletic footwear produced in China.


The athletic footwear involved was classified under subheading 6402.99.80, HTSUSA, as other footwear with outer soles and uppers of rubber or plastics, other, other, valued over $6.50 but not over $12 per pair. The applicable rate of duty for this provision is 90 cents per pair plus 20 percent ad valorem.

The protestant claims that the footwear is properly classifiable under subheading 6403.99.60, HTSUSA, as footwear with outer soles of rubber, plastics, leather or composition leather and uppers of leather, other footwear, other, for men, youths and boys. The applicable rate of duty for this provision is 8.5 percent ad valorem.

The protestant's claim for classification under heading 6403, HTSUSA, is that the external surface area of the uppers of the footwear is leather rather than plastics.


Is the external surface area of the footwear uppers of leather as claimed by the protestant?


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 "[t]he 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.

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.

A laboratory analysis of one of the athletic shoes in issue, style # 91419, was conducted by a Customs laboratory. Excluding accessories and reinforcements as required by Note 4(a) to chapter 64, that analysis revealed that 75.8 percent of the external surface area of the upper of style #91419 was leather. Five similar models are involved in this protest. Due to the similarity in the construction of all five models, we believe that the laboratory report on style # 91419 has application to the other four models.

Counsel for the protestant has not submitted any argumentation as to why any of the leather overlays on the footwear subject to a laboratory analysis should not be considered accessories or reinforcements. Consequently, it is our position based on the result of the laboratory report that the constituent material of the uppers of the footwear involved is leather.


The external surface area of the uppers of the athletic shoes is leather.

The athletic footwear is dutiable at the rate of 90 cents per pair plus 20 percent ad valorem.

The protest is denied. A copy of this decision should be attached to the Customs Form 19, and mailed to the protestant, through counsel, as part of the notice of action on the protest.


John Durant, Director
Commercial Rulings Division

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