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NY B86166

June 27, 1997

CLA-2-64:RR:NC:TA:346 B86166


TARIFF NO.: 6406.10.6000

Mr. Arthur Danforth
Hyde Athletic Industries, Inc.
POB 6046
Peabody, MA 01961

RE: The tariff classification of shoe uppers from China

Dear Mr. Danforth:

In your letter, dated June 2, 1997, you requested a tariff classification ruling. This follows up on your original request of April 2, 1997 and our rejection of same on May 1, 1997.

You have submitted samples of the Grid Jazz 2000-1 for Men, in size 9, and 1000-1 for Women, in size 7. You state that the percent of plastic on the External Surface Area of the Upper (ESAU) is 52.1 for the 2000-1 and 58.9 for the 1000-1. In the case of the 2000-1, you also included a copy of a Laboratory Report from Consumer Testing Laboratories, dated May 27, 1997. That report states its purpose is to determine the Exterior surface of the upper, but we assume External surface, the phrase used in the HTS, was actually meant.

You now state, "A black line has been drawn around the lower part of the upper, indicating where the lasting line will be when the uppers are lasted in our manufacturing process after importation." In your 4-2-97 letter you indicated that you based all your "measurements of the external surface of the uppers" on the area "above the lasting line." This is an error as a matter of law. In applying Note 4-a of Chapter 64 to uppers imported separately, we have not excluded the guesstimated size of the lasting allowance that will be present in the finished shoe, but have used the edge(s) of the piece(s) which will be the external upper as the starting line for the measurement. This is a quite obvious line in the most commonly imported uppers, string lasted ones, and is relatively clear in your samples. Therefore, the measurement of ESAU in these samples should have begun about a half inch further down than the line you have drawn, at the lower edge of the each of the pieces used in the ESAU measurement. Since almost all the material in the zone between your line and the edge of the pieces is plastic, the correct measurement of the ESAU is substantially higher for plastic than you stated.

To turn to another problem area in the ESAU measurement, we now believe that the large, plastic back piece, shaped approximately like a semi-circle of 2 inch radius, which you term the "upper foxing", is not an Accessory or Reinforcement (A-R). As stated in the rejection by NIS Sheridan on 5-1-97, we were then awaiting the HQ reply to Ruling Request 960019. In the interim, we have received it. HRL 960019, dated 4-10-97, did classify that fabric-leather bicycle shoe in Heading 6403, and it placed great emphasis on its interpretation of A-R to no longer include pieces that are "lasted under" since they apparently assume that implies a "structural" purpose for the piece. In fact, it does not discuss at all the A-R status of the pieces that were not lasted under in the sample. We believe it would thus be more appropriate to consider this "upper foxing" to not be A-R since it is stitched directly to a piece which has a large perimeter that will be lasted under and since the stitching which secures it to the base fabric upper is the only stitching that acts to join the lasted under piece to the upper for most of its length because the lasted under piece is not directly stitched to the fabric upper for the 5 inches in which the "upper foxing" is present. The "upper foxing" thus should be viewed as an adjunct to the lasted under piece and not A-R.

On the other hand, the "upper foxing" is stitched to the fabric upper independent of the .5 inch by .5 inch back reflector, even though it is also stitched to it. The function of the reflector piece is clearly to reflect light, not to be "structural". The reflector piece remains an A-R as do the "saddles", which are stitched only to the fabric upper, not to any other overlays.

Regarding the U-throat, plastic eyelet stay, since it is not lasted under, and the lasted under pieces are stitched to the fabric upper independent of it, its A-R status is questionable, even though it appears very similar to the eyelet stay in the style "Magnum", which was determined not to be an A-R in CIT Slip-Ops 96-139 and 97-24. However, it is obvious that a re-calculation of the plastic ESAU with the addition of the lasting allowance and the "upper foxing" would result in an ESAU that was predominately plastic whether or not the eyelet stay is an A-R. Regarding whether these are unassembled "Formed uppers", when the underfoot "flap" in the uppers is stitched to the rest of the upper, there will still be a substantial gap in the heel area. Also, since there is no back counter present, the upper will have only a minimal amount of shaping after that stitching is completed.

The applicable subheading for both uppers will be 6406.10.60, Harmonized Tariff Schedule of the United States (HTS), which provides for shoe uppers and the parts thereof, which are less than formed uppers; in which, as uppers, the upper's external surface is predominately rubber and/or plastics (note that an accessory or reinforcement stitched on top of another material is not part of the upper's external surface, but the material hidden underneath is). The rate of duty will be free.

You have asked that this ruling "include the various color and width variations of the shoes" and you then list nine different style numbers. To the extent that the other styles differ only in color, this ruling does apply equally to them. However, different widths and, for that matter, different lengths may have different percents of the ESAU. Although the legal principles of this ruling apply to them, you cannot simply assume that the same result applies. That is a matter of fact which you need to determine.

You did not request that we return your samples. However, the 2000-1 is being returned to you in a separate mailing as we believe that the sample will clarify this ruling.

This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 C.F.R. 177).

A copy of the ruling or the control number indicated above should be provided with the entry documents filed at the time this merchandise is imported. If you have any questions regarding the ruling, contact National Import Specialist James Sheridan at 212-466-5889.


Paul K. Schwartz
Chief, Textiles & Apparel Branch

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