HQ 087430: Reconsideration of Headquarters Ruling Letter (HRL) 081646. Footwear, athletic; Accessories or Reinforcements; HRL 081646 revoked

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                                       HQ 087430

                                   October 22, 1990


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

            CATEGORY:  Classification

            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.

            FACTS:

                 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.

            ISSUE:

                 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?

            LAW AND ANALYSIS:

                 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.

            HOLDING:

                 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).

                                        Sincerely,




                                        John Durant, Director
                                        Commercial Rulings Division