HQ 081620: Classification of an athletic shoe with everskin overlays on a canvas upper

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 081620

                                  November 30, 1988




          CLA-2:CO:R:C:G  081620 SR  826371

          CATEGORY:  Classification

          TARIFF NO.:  6404.11.20.30

          Ms. Susan Daniels
          Items International Inc.
          7700 El Camino Real
          Suite 207
          Carlsbad, Ca. 92008

          RE:  Classification of an athletic shoe with everskin overlays on
               a canvas upper

          Dear Ms. Daniels:

               This is in reference to your letter of November 9, 1987,
          requesting the tariff classification of a man's hi-top athletic
          shoe under the Harmonized Tariff Schedule of the United States
          Annotated (HTSUSA).  A sample was submitted.

          FACTS:

               The merchandise in question is a man's hi-top athletic shoe.
          The shoe has an upper of canvas and an outer sole of rubber with
          a rubber foxing band.  The upper has turquoise split leather
          overlays which cover over 50 percent of the external surface.  On
          both sides of each shoe's upper is a decorative patch overlay
          made of black everskin.  Everskin is a plastic coated leather
          material.

          ISSUE:

               1.  Whether "everskin" is considered a plastic surface or a
          leather surface.

               2.  What should be included as the external surface area of
          the upper.

          LAW AND ANALYSIS:

                                     Issue No. 1

               The definition of patent leather sets guidelines as to
          whether coated leather is plastic or leather.  The Explanatory
          Notes constitute the official interpretation of the Harmonized










          System at the international level.  Explanatory Note 41.09 (1),































































                                        - 2 -

          defines patent leather as leather coated with a non-transparent,
          lustrous, mirror-like coating, and is considered to be leather if
          the plastic coating does not exceed 0.15 mm. (6/1000 inch) thick,
          and as plastic if over that thickness.  These measurements have
          become the standard guideline for plastic coated leather
          articles, and should apply to "everskin" as well.  Therefore, if
          the plastic coating on the "everskin" does not exceed 0.15 mm.
          (6/1000 inch) thick it is considered leather, if over 0.15 mm.
          (6/1000) thick, it is plastic.

                                     Issue No. 2

               Note 4(a) to Chapter 64 of the HTSUSA, states 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."  In accordance with this rule, and for
          purposes of determining the constituent material of the upper,
          the leather overlays of the shoe are excluded from consideration.
          Thus the material of the shoe having the greatest external
          surface area is the canvas or textile under heading 6404 HTSUSA.
          For the purpose of classifying the product under subheading
          6404.11.20, HTSUSA, the leather accessories or reinforcements are
          included in determining external surface area.  At the subheading
          level 6404.11.20, HTSUSA, provides for footwear "having uppers of
          which over 50 percent of the external surface area (including any
          leather accessories or reinforcements such as those mentioned in
          note 4(a) to this chapter) is leather."  The leather overlays are
          sufficient to make up over 50 percent of the external surface of
          the upper.  Therefore, whether or not the everskin is plastic or
          leather this shoe must be classified under subheading
          6404.11.20.30, HTSUSA, as sports footwear having an upper of over
          50 percent leather.

          HOLDING:
                                     Issue No. 1

               The everskin is considered to be leather if the plastic
          coating does not exceed 0.15 mm. (6/1000 inch) thick.  If the
          plastic coating exceeds 0.15 mm. (6/1000 inch) thick then it is
          considered to be plastic.

                                     Issue No. 2

               The hi-top athletic shoes are classifiable under subheading
          6404.11.20.30, HTSUSA, as footwear with outer soles of rubber or
          plastics, tennis shoes, basketball shoes, gym shoes, training
          shoes and the like, having uppers of which over 50 percent of the
          external surface area (including any leather accessories or












                                        - 3 -

          reinforcements such as those mentioned in note 4(a) to this
          chapter) is leather.  The applicable rate of duty for this
          provision is 10.5 percent ad valorem.

               This classification represents the present position of the
          Customs Service regarding the dutiable status of the merchandise
          under the HTSUSA.  The HTSUSA is scheduled to replace the TSUS on
          January 1, 1989.  If there are changes before the HTSUSA becomes
          effective this advice may not continue to be applicable.

                                        Sincerely,




                                        John Durant, Director
                                        Commercial Rulings Division